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Judgment
Jayanta Kumar Biswas, J.—The petitioner in this CR dated March 28, 2012 under art. 227 of the Constitution of India is questioning an order of the Joint Civil Judge (Senior Division), Port Blair dated March 13, 2012 in TS No. 123 of 2011 (formerly TS No. 9 of 2004). The first opposite party in the CR filed the suit against one Shobhana Mishra. The suit was for declaration of title, eviction, recovery of possession and permanent injunction. It was alleged that the defendant was wrongfully possessing the suit property. The defendant filed her written statement dated July 5, 2005 asserting, inter alia, that she was lawfully possessing the suit property.
On January 5, 2006 the petitioner (the husband of the defendant in the suit) was added as the second defendant. He filed his written statement dated July 11, 2006 asserting, inter alia, that the first defendant was possessing the suit property from 1977. He, however, did not say whether he was in possession of the suit property or any part thereof.
The plaintiff started giving evidence. During the trial of the suit the first defendant died on August 20, 2010. The first opposite party applied for substitution. Consequently, the petitioner and the second-sixth opposite parties in the CR were substituted for the deceased first defendant.
After his substitution the petitioner filed two applications for amending the deceased first defendant''s written statement and also his own written statement. He proposed to amend the written statements for asserting, inter alia, that he was not in possession of any part of the suit property.
By the impugned order the Joint Civil Judge (Senior Division) rejected both the applications holding that the proposed amendments would change the nature and character of the defence case stated by the petitioner in his own written statement.
Ms. Nag appearing for the petitioner has submitted as follows. Since in her written statement the deceased first defendant had asserted that she was in possession of the suit property, and the first opposite party was proceeding on the basis that as one of the substituted heirs of the deceased first defendant the petitioner would be bound by her admission in her written statement, the petitioner filed the amendment applications.
Mr. Khan appearing for the first opposite party has submitted that the amendments were absolutely unnecessary; for the petitioner was to go by the case he had already stated in his written statement and the case of the deceased first defendant stated in her own written statement.
From the proposed amendments it is evident that by amendment the petitioner sought to incorporate in the written statements mainly the reasons for which he felt the need for the amendment. The only fact stated in the proposed amendments, and which was of same relevance, was that he intended to assert that he was not in possession of any part of the suit property.
The reasons for a proposed amendment are not to be incorporated in the pleading of a party by amendment thereof; for the reasons are relevant only for deciding the request for the proposed amendment, not for deciding the lis between the parties; and for deciding the lis only the relevant facts are to be stated in the pleading (originally or by amendment).
Hence almost the whole of the proposed amendments, in my opinion, was not permissible at all.
As to the possession aspect, the petitioner was an independent defendant in the suit and as such he already filed his written statement saying that the deceased first defendant was in possession of the suit property.
It was for the plaintiff to prove, if necessary, that as one of the substituted heirs of the deceased first defendant the petitioner was also in possession of the suit property. The deceased first defendant''s case stated in her written statement is not applicable to the petitioner to the extant it is contrary to his own case stated in his own written statement.
It is, however, for the petitioner to decide whether he will contest the suit to protect the deceased first defendant''s interests.
Although the Joint Civil Judge (Senior Division) has not rejected the amendment applications for these reasons and has rejected them on the grounds that the proposed amendments, if allowed, would change the nature and character of the petitioner''s already stated defence case, I do not think it is necessary to interfere under art. 227.
There is no reason to say that the Joint Civil Judge (Senior Division) has committed an error of jurisdiction. For these reasons, I dismiss the CR. Send down the lower Court records at once. No costs. Certified xerox.