An amendment that does not take away any vested right of the plaintiff and merely expands upon the legal position concerning the facts already pleaded does not amount to a judgment.

PRADEEP NANDRAJOG, J.

1. Challenge in FAO (OS) 85/2015 is to an order dated January 13, 2015 allowing IA No.14714/2014 filed by the respondents praying to be granted permission to amend the written statement filed by substituting existing para 4 of the preliminary objections to the written statement filed as also existing paragraph 5 of the written statement.

2. Challenge in FAO(OS) 86/2015 is to a subsequent order dated January 20, 2015 taking on record the amended written statement.

3. The grievance in FAO(OS) 86/2015 is that without awaiting the period of limitation within which the appellant could challenge the order dated January 13, 2015, the learned Single Judge could not have taken on record the amended written statement.

4. There was no need to file FAO(OS) 86/2015 for the reason if FAO(OS) 85/2015 were to be allowed, the order dated January 20, 2015 would fall.

5. Relevant facts to be noted would be that the appellant, as plaintiff, claimed title to the suit property under a will dated February 14, 1989 allegedly executed by Late Raj Kumari, the mother of the appellant and respondent No.1. The second respondent is the wife of respondent No.1. Claiming that Raj Kumari died and she had permitted the respondents to stay in the suit premises, during her lifetime, case pleaded by the appellant is that he revoked the permission granted by the mother and hence the possession of the respondent became unauthorised.

6. In the written statement filed the defendants challenged the will dated February 14, 1989 relied upon in the plaint, bringing out that the appellant had not obtained a probate thereof. It was pleaded that the will was forged. In paragraph 4 of the preliminary objections it was pleaded that the funds to purchase the suit property were generated by receipt of sale consideration when Property No.J-36, Rajouri Garden, New Delhi was sold, which property was acquired by the father of the parties partly from his own earnings and partly from the funds of the joint family. In paragraph 5 of the written statement, while responding to paragraph 5 of the plaint this aspect was highlighted with further pleading that the mother of the parties had no source of income and she was receiving meagre pension after the father of the parties died. It was pleaded that the sale-deed of the suit property was obtained in the name of the mother since she was the eldest in the family.

7. The proposed amendments allowed, simply plea that for the existing facts pleaded, the mother would be required in law to be holding the suit property as a trustee for the benefit of all the legal heirs of Late Sh.Yag Datta, the father of the parties; and that she would hold the property in a fiduciary capacity.

8. The issue as to which kind of orders passed by a Trial Judge, allowing amendment of a plaint (which would also hold good for amendment of a written statement) was considered by the Supreme Court in the decision reported as (1974) 2 SCC 387 Shanti Kumar R.Canji Vs. Home Insurance Co. Of New York. The following observations were made by the Court:-

“We are in agreement with the view expressed by the High Court at Calcutta in the M.B.Sirkar’s case as to when an order on an application for amendment can become a judgment within the meaning of Clause 15 of the Letters Patent. If an amendment merely allows the plaintiff to state a new cause of action or to ask a new relief or to include a new ground of relief all that happens is that it is possible for the plaintiff to raise further contentions in the suit, but it is not decided whether the contentions are right. Such an amendment does nothing more than regulate the procedure applicable to the suit. It does not decide any question which touches the merits of the controversy between the parties. Where, on the other hand, an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation, it is a judgment within the meaning of Clause 15 of the Letters Pa