MARISWAMAIAH Vs. MUNIYAMMA AND OTHERS

JUDGEMENT

(1.) HEARD Sri Jwala Kumar for the revision -Petitioner and Sri L. Ramaiah Gowda for Respondent No. 1. Other Respondents have been served but they have not put any appearance.

(2.) THIS Revision Petition under Section 115 of the Code of Civil Procedure arises from the judgment and Order dated 12th July, 1999, whereby the trial Court (Additional Civil Judge, Junior Division, Malur) rejected the revision Petitioner's application under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure made in O.S. No. 164 of 1990 for amendment of the plaint by addition of paragraph -6 and addition of additional prayer for declaration that Plaintiff -applicant has got 1/3rd share and that decree for partition and separate possession be passed as alternative remedy. The suit had originally been filed for specific performance of contract to execute the sale deed on the ground that the Defendant had agreed to sell the property or his share in the property in the suit in favour of the Plaintiff and the Defendant has failed to do so, the suit was filed with prayer for decree for specific performance of contract being passed in his favour. The trial Court rejected the application for amendment taking the view that the present suit in which this application had been made is not a suit for partition. It is really a suit for specific performance of contract to sell the property or interest in property and allowing of amendment as sought is not permissible as it will introduce a new case and change the nature of the case. Learned Counsel for the revision Petitioner contended that the Plaintiff has been a co -sharer with the Defendant in the suit property and Defendant had agreed to sell his share which he had sold in favour of Respondent No. 1. Really the nature of the suit as originally filed has been a suit for specific performance of contract to sell the interest in property. The amendment if allowed would have only changed the nature of the case from suit from specific performance of contract for declaration of his share of partition. This is not permissible. It is now well settled law that no amendment is to be allowed which has the effect of changing the nature of the case. Reference may be given in this regard to the decision of their Lordships of the Supreme Court reported in the case of Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, AIR 1957 SC 363 and to the decision of their Lordships in the case of A.K. Gupta and Sons Vs. Damodar Valley Corporation, AIR 1967 SC 96 . Thus considered, in my opinion, the trial Court did not commit any error, nor any jurisdictional error in passing the order. That the order impugned does not suffer from any error or the jurisdictional error. The learned Counsel contended that liberty may be given to the revision Petitioner to file a suit for declaration and partition. The applicant has a right to seek partition of share if he has got any, and also seek declaration of that share from the competent Court, as per and according to law. There is no question of any liberty being given.