SUMITRA SAHAI Vs. ARYA ORPHANAGE

JUDGEMENT

(1.) This is defendant No. 1's application for striking out some portion of averments inplaintiff's replication, (filed by way of reply) to defendant No. 1's amended written statement. The defendant claims that the said portion has been unauthorisedly added even after dismissal of plaintiff's application, being IA No. 10438/96 (under Order 6 Rule 17, CPC), seeking permission to incorporate the same averments in her plaint, which was not permitted as the plea ran counter to the plaintiff's stand, being the basis of the suit. It is also alleged that the amended replication is contradictory to the earlier replication. The portion sought to be struck off, set out in para 15 of the application, reads as follows:

(2.) The plaintiff admits having filed IA 10438/96 for permission to amend the plaint to incorporate the aforenoted averments, now impugned, which was dismissed by the Court. She, however, opposes the defendant's present application on the plea that the defendant itself having incorporated some additional facts and averments in its amended written statement unauthorisedly, there is nothing to restrict her from incorporating new averments in the replication, and no exception can be taken to it.

(3.) The controversy. has arisen thus: The plaintiff in her suit, plaint para 5, as basis of the suit, claimed that she inherited the property in question, on the demise of her father Lala Narain Dutt in 1951 jointly with her mother, brother and two sisters. She, thus, claimed to be joint owner of I /4th of the property. She later filed IA 10438/ 96, seeking to plead that, in fact, she inherited the share in the property from and on the demise of her mother, who died in 1964 and not from her father, who died in 1951. This new stand was held to be a separate and distinct cause of action contradictory from the one which was pleaded in the original plaint. The Court observed that through the amendment, "the plaintiff now wants to completely give up the plea, which she had taken in the original plaint that she had inherited to the estate of Narayan Dutta. After giving up that plea she now wants to set up a totally new case that she did not inherit the estate on the death of Narayan Dutta, which was inherited by son and widow." It was held that an amendment cannot be permitted as it would not only cause material prejudice but also result in irreparable loss to the defendant and will render the plea of limitation nugatory since as on the date of filing of the application, the claim for the cause of action sought to be pleaded would definitely be barred, if a fresh suit on that cause of action had to be filed. Accordingly, her application for amendment of the plaint was dismissed on 18 Janaury, 1996. This order has attained finality because the appeal filed against the order is stated to have been dismissed as withdrawn.