The main legal point established in the judgment is that amendments to pleadings must not seek to fit the pleadings with the evidence already adduced, and the permission to withdraw a suit with liberty to file a fresh suit must be based on proper grounds.

JUDGMENT :

Tarlok Singh Chauhan, J.

This application has been preferred by the applicants/respondents under Order 6 Rule 17 read with Sections 151 and 153 CPC or in the alternative under Order 23 Rule 1 CPC with the prayer that the applicants-plaintiffs be allowed to amend the plaint or in the alternative the plaintiffs be allowed to withdraw the suit with permission to file fresh on the same cause of action.

2. It is averred by the applicants-plaintiffs that they are owners of 1/4th undivided share in Shop No.72, Lower Bazar, Shimla standing built upon land comprised in Khasra No. 313, Bazar Ward, Barra Shimla and during the course of arguments in the case, it was found that due to an oversight and inadvertent mistake, history and background of the title of the plaintiffs was not been given in the plaint, though evidence was led in this behalf which is a technical defect in the pleadings of the plaintiffs. It is further averred that the plaintiffs are owners of 1/4th share in the shop in question through their predecessors-in-interest late Shri Kedar Nath Sood and Shri Sansar Chand Sood. During the pendency of the case, the original plaintiff No.2 and 3 have died and their legal representatives have been brought on record. Similarly, original defendant No.1 and 2 have also died and name of defendant No.2 has been deleted from the array of the defendants and legal heir of original defendant No.1 has been brought on record as appellant No.1.

3. The plaintiffs have averred that with a view to overcome the technical defect in the pleadings, lest the plaintiffs are non-suited on this count, they want to amend the plaint by adding Para No.2A to the plaint to the following effect:-

“2A. That the said 1/4th share in the suit property and adjoining shop No.72/1 originally belonged to Shri Tikhu Mal s/o Shri Mukadi Mal and Shri Khusi Lal, s/o Shri Hira Lal Sood who vide sale deed dated 15th February, 1926 duly registered in the Office of the Sub Registrar, Shimla, sold their undivided ¼ share in the said properties 72 and 72/1 in favour of Shri Mukand Lal s/o Shri Bhandari Mal and Shri Sansar Chand s/o Shri Shiv Dayal. Shri Mukand Lal aforesaid sold his 1/8th share in shop No.72 and 72/1 to Shri Kedar Nath, s/o Shri Shiv Dayal vide sale deed dated 15.2.1926 duly registered with the Sub Registrar, Shimla. In the original sale deed of 1926 shop No.72 by mistake and drafting error has wrongly been mentioned as shop No.72/2 and the said mistake has also been repeated in the subsequent sale deed of Shri Mukand Lal. The said inadvertent mistake was also carried forward in the Municipal records for some time but later on rectified when mistake was discovered. In fact on Khasra No.313, Bazar Ward, Barra Shimla there are only two shops, that is shop No.72 and 72/1. Shop No.72/2 has never been in existence at all and reference to shop No.72/2 in the sale deed is a drafting error/defect. In the sale deeds of 1926 and subsequent sale deed of December, 1977 executed by Dr.Mukand Lal in favour of Shri Kedar Nath, said two shops are properly identified by permanent boundaries which fact is also mentioned in the sale certificate of Shri Himat Singh, issued by the Custodian Department namely, on the north Alley and passage, on the south Lower Bazar, on the East Alley No.9 and on the west house of Bhedu Mal Mohinder Chand and dimensions of the properties are on the east 21 feet, on the west 25 feet, on the south 29 feet, on the north 28 feet, total being 644 square feet. Even as on the date the boundaries of property No.72 and 72/1 are the same and the dimensions of shop No.72 and 72/1 on the spot are also the same as also in the revenue record right from 1907 onward till date. The said two properties are encompassed in the said dimensions in the papers as also in the record. Thus reference of shop No.72/2 in sale Deeds was an error/defect. In fact, reference to 72/2 is reference to shop No.72.”

4. It is also averred that due to subsequent developments in the