Syed Mohammad liylas vs Jawahira & Ors.

Composite order passed by Id. 3rd Addl. Munsiff Srinagar rejecting the applications of the petitioners filed in two separate suits seeking

amendment of the plaint under Order 6 Rule 17 of Civil Procedure Code read with Section 151 of the Code. The revision petitions have been

heard together and are accordingly disposed of by a common order.

Properties, whether movable or immovable, inherited or self acquired have the tendency of potential of giving rise fueds even amongst the

nearest relations which in these cases are the real brothers. Failure on the part of members of the family especially the real brothers and sisters to

resolve the disputes amicably resulted land in the court of the law to seek their settlement. The cases in hand are one such an example.

The plaintiff instituted two civil original suits against his brothers and sisters. One relating to settlement and redention of accounts for submission

of accounts before the courts so as to enable the court to pass an appropriate decree and for declaring specific shares of the parties to the suit.

The other suit was filed by the petitioner seeking partition of the suit property as also consequential relief of injunction. In both the suits the

applications were filed by the petitioner seeking amendment of both the plaints. In the applications it was pleaded that the petitioner was permitted

to amend the suits to include some more properties in the suits as also to seek amendment of the prayer clause of the suits. These applications

were resisted by the respondents by filing objections. In the objections the contention raised by the petitioner in the applications were controverted

and explanations were also tendered as to how and in which circumstances the properties sought to be introduced by filing an amended plaint

infact belonged to the respondents.

The Id. trial Judge after hearing the parties rejected the applications by the impugned composite order.

Heard Id. counsel for parties. Considered the matter.

The dispute is between the real brothers. The original claim is made in the plaint filed by the petitioner apparently, it appears by way of

amendments some more properties being included which the respondents claim cannot become subject matter of the suits.

The claim of the petitioner that the parties sought to be introduced by way of amendment into the plaints are in fact the properties which have

come into existence from the primary source of partnership business as also which are their ancestral properties, M/s Pearsons Importers

Exporters and Manufactures is stated to be source of all other properties which are sought to be introduced by way of filing of amended plaints.

Amendments in pleadings can be either allowed or disallowed in view of the facts and circumstances of a particular case.

The dispute has arisen between brothers and admittedly certain facts were not brought to the notice of the court in the earlier plaints. By

permitting the parties to amend the pleadings it does not necessarily mean that the parties right thereof are being accepted. The amendments are

being allowed only to facilitate full and final adjudication of the disputes and controversies between the parties. In the cases in hand the dispute

raised are not amongst strangers but have arisen amongst real brothers. The claims made by one party and controverted to by another party

require to be adjudicated upon and settled in one round of litigation. The Id. trial Judge while rejecting the application of the petitioner has given

liberty to petitioner to avail other remedy available under law. The order impugned thus, has not clinched the controversy raised but has still left

room for settlement of the controvercsies raised through some other mode instead of allowing the amendments of the suits. The petitioner in such

circumstances can file separate suits and their maintainability will become subject matter of trial. When such a situation created in the case then in

order to. avoid the multiplicity of litigation and in order to enable the parties to settle the disputes amongst themselves, it will not be appropriate but

also just to allow the petitioner to amend the plaint. The claim made by way of amendment are to be controverted by respondents as they will get

opportunity to file the written statement. The issues thereafter be put on trial and parties shall have to prove the case set up by them during trial. On

examination of the amendment of the applications and the objections filed thereto, it becomes demonstratively clear that the claims made by

petitioner have been specifically controverted by respondents, same is required to be done by way of filing written statement. The nature of

controversy being dispute amongst the parties about the properties which require to be settled. The nature of the suits in the attending facts and

circumstances of these case by allowing the amendment application is not changed. The petitioner is staking claim to other parties which according

to him are concerning to the original suit property, thus amendment of the plaints can be said to be provided better particulars and further facts.

The Id. counsel for the petitioner has referred to judgment passed in case titled B.K. Narayana Pillai appellant v. Parameshwaran Pillia (2000) 1

Supreme Court cases 712. In support of his submissions that amendments in the pleadings shall be allowed to, as same is the normal rule.

The Id. counsel for the respondents referred to case titled Bhu Deo v. District Judge, Etah and ore reported in AIR 2007 Allahabad 29; M.M.

Sharma v. Municipal Corporation of Greater Bombay reported in AIR 2005 Bombay 344; Chunchu Laxminarayana (D) by L.Rs. v. Smt P.

Andamma reported in AIR 2006 (NOC) 1334 (A.P.); Prithivi Raj and another v. Copal Singh and ors reported in AIR 2006 (NOC) 1016 (H.P);

Bhasharan Nair and anr v. P. Chandramathiyamma reported in AIR 2006 (NOC) 411 (KER).; Thonduri Chenga Reddy v. Chillakuaru Candra

Sekhara Reddy reported in AIR 2006 (NOC) 388 (ANDH. PRA); K. Vinayak Reddy and anr. v. Shriram Chits Limited and ore, reported in

AIR 2006(NOC) 1341 (A.P.); Gian Chand v. Mangi Ram Mangi Ram v. Gian Chand reported in 2005 (1) SLJ; Omkar Sharma and ors v. Shri

Mata Vaishno Devi Shrine Board, reported in 2005 (1) S.L.J.; Sukhad Raj Singh, v. Ram Harash Misra and ore reported in AIR 1977 Supreme

Court 681; A.K. Gupta and sons ltd. v. Damodar Valley Corporation reported in 1967 SC 96 (V 54 C 16); and DR. Zafar AH Shah and ore v.

The Assistant Custodian of Evacuee Property, Jhansi and ore reported in AIR 1967 S.C 106 (V 54 C 17). To butteries his argument that the

amendment of the like nature cannot be allowed.

By allowing the proposed amendment of the controversies amongst parties will be set at rest. The respondents will be at liberty to take all

defence available to them in the written statement which would include the defence that the claim is made are barred by limitation. Since the

amendment is allowed same would be subject to payment of costs of Rs. 5000/in each case so as to compensate the respondents.

The petitions are accordingly allowed. Impugned order is setaside. The amendment applications filed by petitioners in both suites are allowed.

The petitioners will file amended plaint strictly in accordance and in consonance with the amendment sought in the plaints within a period of three

weeks from today and respondents will thereafter file the written statement within four weeks. Registry is directed to send down records forthwith.