MAHAVIR PRASAD Vs. RATAN LAL

JUDGEMENT

(1.) This appeal is directed against the judgment of the Single Bench of the Rajasthan High Court dated 13th December 2000 whereby the order of the Civil Judge, Senior Division, Sikar dated 24th October 2000 dismissing the application under Order 6 Rule 17 of the CPC seeking to amend the plaint, has been reversed. The facts are as under:

(2.) On 10th October 1974, one Bhanwarlal son of Gulab Chand, the brother of the respondent herein Ratan Lal, created a trust styled as Shri Gulabchand Bhanwarlal Sethi Smriti Nidhi Pranyas Trust. The trust deed was duly registered with the Sub-Registrar, Sikar on the same day. On 27th January 1976, Ratan Lal filed a suit for partition and declaration against the trustees with respect to the property which formed a part of the trust. The Civil Judge, Senior Division framed the requisite issues on 19th August 1977 and after trial a preliminary decree was passed on 25th May 1979 holding that Ratan Lal was entitled to a half share in the property and was therefore entitled to a partition by separate possession by metes and bounds. No appeal was preferred against this decree by either party. Four of the six trustees thereafter passed away and the remaining two trustees, the appellants herein, moved an application on 27th March 1999 for the passing of the final decree. Ratan Lal at this stage moved an application dated 28th August 2000 under Order 6 Rule 17 for amendment of the plaint now claiming the ownership of the entire trust property, inter alia, on the ground that the property was a joint family property consisting of himself and his brother, the deceased defendant No. 1 Bhanwarlal, and alleging that Bhanwarlal had not created the trust as he had abandoned the idea of doing so and he (Ratan Lal) as sole heir, was thus, entitled to a decree for the entire property. The appellant filed a reply dated 13th September 2000 to the said application taking several pleas. As already mentioned above, the amendment application was dismissed by the Civil Judge vide order dated 24th October 2000 and the said order has been set aside by the High Court vide the impugned order dated 13th December 2000 and a direction has been issued that the amendment should be allowed in the preliminary decree so that the matter may be finally determined when the final decree is prepared. It is against this order that the present appeal has been filed.

(3.) Mr. Mridul, the learned Counsel for the appellant, has argued that the order of the High Court was based on a misconception as the prayer in the application under Order 6 Rule 17 was for an amendment to the plaint and not for an amendment to the preliminary decree and as such the very basis of the order was erroneous as to the relief claimed. He has also pleaded that the application filed about 20 years after the preliminary decree had been passed was highly belated and ought to have been dismissed on that very short ground. He has finally submitted that the finding of the trial court which had not been reversed by the High Court, was that a new case was sought to be put up by the amendment which was not permissible under law.