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1992 Supreme(P&H) 1084
PUNJAB & HARYANA HIGH COURT
H.S.Bedi, J.
Jangir Singh
Versus
Mohinder Kaur And Ors.
Civil Revision No. 3107 of 1990,
Decided On : DECEMBER 4, 1992
Amendment of pleadings at the appellate stage to change the nature of the suit and put up an inconsistent plea is not permissible.
Headnote:
CIVIL PROCEDURE CODE, 1908 - ORDER 6 RULE 17 - AMENDMENT OF PLEADINGS - AMENDMENT OF PLEADINGS AT APPELLATE STAGE - AMENDMENT OF PLEADINGS TO CHANGE THE NATURE OF THE SUIT - AMENDMENT OF PLEADINGS TO PUT UP AN INCONSISTENT PLEA - AMENDMENT OF PLEADINGS TO DISPLACE THE CASE OF THE RESPONDENTS - AMENDMENT OF PLEADINGS NOT PERMITTED.
Fact of the Case:
The petitioner filed a suit for declaration of ownership and possession of certain agricultural land. The trial court decreed the suit partly, and the petitioner filed an appeal. During the pendency of the appeal, the petitioner moved an application under Order 6 Rule 17 of the Code of Civil Procedure to amend the pleadings to change the nature of the suit and put up an inconsistent plea.
Finding of the Court:
The court held that the proposed amendment would displace the case of some of the respondents and that it could not be permitted. The court relied on the judgments in Daljit Singh and Ors. v. Balwant Singh and Dalip Kaur and Ors. v. Sohan Singh, which held that a party could not be allowed to turn round to take an altogether contradictory plea.
Issues: Whether the amendment of pleadings at the appellate stage to change the nature of the suit and put up an inconsistent plea is permissible.
Ratio Decidendi: The court held that the amendment of pleadings at the appellate stage to change the nature of the suit and put up an inconsistent plea is not permissible as it would displace the case of the respondents.
Final Decision: The court dismissed the revision petition with no order as to costs.
H.S.Bedi, J.
1. The present revision petition is directed against the order of the Additional District Judge, Faridkot, whereby the application under Order 6 Rule 17 of the Code of Civil Procedure filed before him by the plaintiff/appellant at the stage of appeal, has been declined. The facts of the case are that the plaintiff (hereinafter referred to as the petitioner) filed a suit against the defendants (hereinafter referred to as the respondents) for declaration to the effect that the plaintiff was owner in possession of the certain agricultural land and mutation No. 943 and 1920 of inheritence of Rattan Singh and decree dated 19.7.1984 in favour of respondents No. 7 and 8 was also wrong and fictitious.
2. The following issues were framed by the trial Court :-
1. Whether the plaintiff is in exclusive possession to the knowledge of others as owner after the death of deceased Rattan Singh by way of alleged partition dated 13 8.195? OPP
2. Whether the parties are Jats and governed by custom in matters of inheritance ? OPP.
3. Whether mutations No. 943 and 1980 are void as alleged in the plaint and have no effect on the rights of the plaintiff? OPD.
4. Whether the suit is bad for mis-joinder of necessary parties ? OPD.
5. Whether the simple suit for declaration is not maintainable ? OPD.
6. Whether the suit is not within limitation ? OPD.
7. Whether the plaintiffs are entitled to the declaration prayed for ? OPP.
8. Whether the plaintiffs are entitled to the permanent injunction prayed for ? OPP.
9. Whether the decree dated 19.7.1984, is fictitious and wrong ? OPP. 9A. Whether the defendant No. 6 has not suffered any decree in favour of defendants No. 7 and 8 ? OPD 6.
10. Relief.
The trial Court decreed the suit partly and being dis-satisfied, the petitioner filed an appeal before the Additional District Judge, Faridkot. While the appeal was yet pending, he moved an application under Order 6 Rule 17 of the Code of Civil Procedure and sought to make the following amendments : -
"3-A. that father of the plaintiff inherited the land measuring 186 kanals 5 marlas, from his father Kunda Singh. At the time of death of Rattun Singh, the land in dispute was ancestral co-parcenary property. In this land sister of the plaintiff has no right being the heir of Rattan Singh."
As already indicated, this application was disallowed and the present revision petition has been filed against the same. The First appellate Court has held that the amendment could Dot be allowed keeping in view the nature of the suit as the case of the petitioner before the trial Court, as set out in the original plaint, was that a partition had taken place between the petitioner and Raj Singh-his brother during the life time of Rattan Singh their father and that alternatively, the parties being Sidhu Jats were governed by custom and that the petitioner and Raj Singh were to be taken as co-owners of the property. Keeping in view this background, it has been held by the lower Appellate Court that by the proposed amendment the petitioner sow seeks to change the nature of the suit and put up totally a different and inconsistent plea to the one already taken.
3 Mr. M. L. Sarin, Senior Advocate, appearing for the petitioner has urged on the basis of a number of judgments cited by him that the plea now he seeks to project by amendment is not a new one as he only seeks to plea that the parties being governed by Hindu Law were entitled to succeed to the property on that basis, and even if this suit was decreed, the net result would be that the petitioner and Raj Singh would be held members of co-parcenary. He has also stated that the amendment can be allowed at any stage and for this proposition has cited a number of judgments in support of this.
4. Mr. Ashok Singla, learned counsel for the respondents has, however, urged that by the proposed amendment, the entire case of the respondents would be displaced and a new case will be put as an inconsistent plea which could
