Mittar Sain and others vs Ram Dass and another

S.C. Mittal, J.—Facts giving rise to this revision petition are that the suit filed by the plaintiff-petitioners for a declaration challenging the validity of the impugned order of allotment was decreed by the trial Court. Feeling, aggrieved, Ram Dass defendant-respondent preferred an appeal in the Court of Senior Subordinate Judge, Karnal. During the pendency of the appeal, the plaintiffs applied for amendment of their plaint with respect to a clerical mistake, i.e., Rectangle No. 52 was mentioned in the plaint instead of 62. Amendment to this extent allowed by the learned Senior Subordinate Judge was availed of by the plaintiffs. Thereafter, the defendant asked for permission of the Court to file written statement without any restriction. The same having been granted by the learned Senior Subordinate Judge, the plaintiffs have moved this Court.

The two patent facts are that the amendment of the plaint relates to a clerical error in the number of the rectangle of the suit-land and that this has been sought to be amended after having obtained a decree and during the pendency of the appeal filed by the defendant. Ordinarily, it is no stage for allowing the defendant to reopen the whole case by adding new pleas, which may even require leading of evidence by the parties. In the facts and circumstances of the case in hand, the interests of justice also require that the amendment to the written statement be confined to the amendment made in the plaint. This conclusion is clearly deducible from the following observations of I.D. Dua, J. (as he then was) in New Bank of India Ltd. Vs. Smt. Raj Rani and Another, :--

The crucial test, in deciding whether the fresh written statement should be confined to the amended portion of the plaint only, is what is the nature of the order passed by the court when permitting afresh plaint to be filed. If at that time the court does not intend to restrict a fresh plea to be raised merely as supplementary to the trial already held and if it permits a plaint to be filed so that the entire trial could begin from the stage of the pleadings, then it is certainly open to the defendant to put in a fresh written statement untrammeled by his pleas in the earlier written statement. It would undoubtedly be for the court to consider how far to believe the truth of the plea in the amended written statement in face of the earlier pleading and unless cogent and convincing grounds are shown for going back on the earlier pleas, the court would in all probability rule out the subsequent plea as an afterthought.

The leanded Senior Subordinate Judge erred in not appreciating the ratio of this judgment and applying it to the facts of the case in hand.

Learned counsel for the defendant contended that by reason of the change of circumstances and enactment of some new legislation, an amendment of the written statement is called for. The scope of the present revision petition does not allow the defendant to raise this aspect of the case before me and I leave it open with the remarks that he may, if so advised, take up this ground before the lower appellate Court. 1 may further make it clear that whatever has been said above by me regarding amendment of the written statement is in relation to the sole fact that the plaintiffs have been allowed to amend their plaint with respect to Rectangle No 62.

In the result, I allow the revision petition, set aside the impugned order and direct that the amendment of the written statement be confined to the amendment of the plaint as regards Rectangle No. 62. The parties are left to bear their own costs of this Court.