KAMALA Vs. AMMANNA RAI

JUDGEMENT

(1.) It seems to me clear that the court below erred in allowing the application of one alone of five plaintiffs (the 5th plaintiff to be precise) who in a suit for partition had claimed their 11/20th share jointly, to amend the plaint so as to give him a 6/20th share separately. This, in the teeth of the opposition of the remaining plaintiffs who disputed the share claimed by the 5th plaintiff and who by reason of some intricacies of the Aliyasanthana law - into which it is fortunately not necessary to enter - averred that in a fresh partition between the plaintiffs themselves, the 5th plaintiff would be entitled only to a smaller share than in a partition of the entire family. What the court below has done is to force an amendment on plaintiffs 1 to 4 by which the 5th plaintiff will, according to the plaint itself, get a 6/20th share which is the very thing they dispute. How, in the face of such a plaint, the Trial Court can consider the contentions of plaintiffs 1 to 4 and determine the share really due to the 5th plaintiff, as it proposes to do, is something which I am unable to understand. Nor do T think that disputes between the plaintiffs inter se or the defendants inter se are proper matters for decision in a suit, unless of course that is necessary for giving relief to the opposite party. Apart from O.6, R.16, C.P.C., I know of no provision of law by which the pleading of a party can be amended against his will. (Under O.1, R.10(4), it is left to the plaintiff to amend the plaint in the manner he thinks proper). Under O.6, R.17, under which the 5th plaintiff purported to bring his application for amendment, the court may allow either party to amend his pleadings. It follows that, when parties have pleaded jointly, they must apply jointly; or else, the person wishing to amend must file a separate pleading, which, in this case, would be a separate plaint. In AIR 1927 Cal. 733 , it was doubted whether the plaint of two persons could be amended on the application of one, without any reference to the other, (the other was not a party to the application, and far from opposing the amendment, the amendment was one which it is to be presumed he would have welcomed, since it was to his advantage); but the question was not decided. I am told by learned counsel that they have been able to trace no other decision on the point. This is probably because no case, where a plaintiff wished to force an amendment of the plaint on his unwilling coplaintiffs, has up to now, progressed so far as to reach a High Court.

(2.) I allow the petition and dismiss the 5th plaintiffs application for amendment (R.I.A. 1069/57) with costs both here and in the court below.

(3.) Counsel for the 5th plaintiff has argued that it is open to him to get himself transposed as a defendant and get his share separately. That is something which he has not tried to do and it is unnecessary for me to say anything about the feasibility of the proposal.