AMBIKA PRASAD DWIVEDI Vs. HARIHAR PRASAD

JUDGEMENT

(1.) THIS is second application for amendment of the plaint moved in the Second Civil Appeal. By means of the amendment application to which not only objection has been filed but has been seriously opposed, the plaintiff-appellants have prayed for amendment of the plaint in paragraphs pertaining to payment of court fees and valuation of the suit and the relief clause by addition of relief for declaration as owner of the house in question regarding which conseqential relief of recovery of possession and realisation of damages is found to be existing.

(2.) THE plaintiff-appellant No. 2 claiming himself as owner landlord of House No. 151/52 having purchased it from plaintiff-appellant No. 1 who had earlier purchased it from its owner Murlidhar vide registered sale deed of the year 1976 and alleging defendant-respondent as tenant filed a suit for arrears to rent and for damages for use and occupation till ejectment of defendant. Relief for ejectment was non distinctly mentioned in the relief clause though the suit was entitled as suit for arrears of rent and ejectment and notice preceding the same was also for ejectment. THE defendant-respondent filed a written statement taking it to be suit for ejectment but pleaded that he himself was owner of House No. 151/52 the boundaries of which on two sides did not tally with the description given by plaintiff-appellant though at the same time also where it was mentioned that he himself was owner in possession of house in suit. His claim for owner-ship was based on an unregistered will said to have been executed in his favour by said Murlidhar who had earlier allowed him to reside in the house though not as a tenant. It was pleaded that as the dispute was regarding ownership the court had no jurisdiction to try the suit and plaintiff should file a suit for declaration instead of arrears of rent and ejectment. In view of plea of jurisdiction the plaintiff-appellant took back the plaint and filed it again before the Court of Munsif. Incidentally the written statement was also returned to plaintiffs which too was filed by him along with the plaint. THE trial court framed an issue regarding the ownership of defendant-respondent. THE Parties tendered oral and documentary evidence in support of their claim for ownership. THE plaintiff filed sale deed executed by previous owner and the defendant filed an unregistered will said to have been executed by the very same person in his favour though the date of same was subequent to the date of sale deed relied upon by plaintiff. Both denied the documents filed by either party. THE trial court decreed the suit but the lower appellate court allowed the appeal and dismissed the suit whereafter this second appeal was filed.

(3.) IN Suraj Prakash Bhasin v. Smt. Raj Rani Bhasin, AIR 1981 SC 485 it has been observed 'the liberal principles which guide the exercise of direction in allowing amendment are that amendment which do not totally alter the character ot the action should be readily granted while case should be taken to see that injustice and prejudice an of irremediable character are not inflicted on the opposite party under pretence of amendment that are distinct cause of action should not be substituted for another and that subject matter of suit not be changed by amendment.'