RADHEY LAL Vs. RAM KISHORE

JUDGEMENT

(1.) This revision is by the Plaintiff against an order refusing an amendment of his plaint.

(2.) A preliminary objection has been taken before us upon the basis of a Full Bench decision of this Court in Mst. Suraj Pali v. Arya Pratinidhi,1936 AWR 776 that no revision lies from an order refusing to allow an amendment of a pleading. This preliminary objection, in our opinion, must prevail. But the circumstances of the case require us to observe that the Plaintiff will not be precluded from putting the matter which he wishes by this amendment application to be put before the lower Court by way of a replication to the Defendant's written statement, and the Defendant will have the chance of putting in a rejoinder if such a procedure is adopted by the Plaintiff in the court below. In support of this observation we have just to make a brief reference to the facts of the case as alleged.

(3.) The Plaintiff in the case is one Radhey Lal son of Chhotey Lal who was one of sons of Deep Chand. Deep Chand had another son of the name of Budh Sen who had a widow Smt. Ram Piari alias Smt. Ram Sumarni. Deep Chand was survived by Budh Sen ; and Budh Sen in turn was survived by Ram Piari. Ram Piari is also since dead. The Plaintiff alleged in the plaint that the property in suit belonged to Deep Chand; that Deep Chand made a bequest of this property by a document dated 16-3-1903, in favour of Budh Sen; that after the death of Budh Sen, the property was inherited by Ram Piari and after Ram Piari's death it came to the Plaintiff as a reversioner. It was further stated in the plaint that the Defendant was setting up title under a document alleged to have been executed by Ram Piari and that that document was not binding upon the Plaintiff. The allegation in the plaint that Deep Chand was the owner of the property was denied in the written statement. In the written statement the Defendant contended that the property belonged exclusively to Ram Piari alias Ram Sumarni and that she was therefore entitled to transfer this property to the Defendant by a sale deed in order to defray her expenses for pilgrimage. After the written statement was filed the Plaintiff moved the application for amendment of the plaint. The Defendant filed a sale-deed after his written statement was made. That sale deed indicated that it stood in favour of Budh Sen and Smt. Ram Sumarni. When the Plaintiff examined the sale-deed he, in the light of the will that had been executed, tried to raise the plea that the sale in favour of Budh Sen and Ram Piari was benami and that the real owner was Deep Chand. A further allegation was made in that application for amendment to the effect that even if Deep Chand was not to be regarded as the real owner ; the property belonged halt and half to Ram Piari and Budh Sen ; and that in any event the right of Budh Sen would devolve upon the Plaintiff. These facts the Plaintiff could not have pleaded in his original plaint in anticipation of what the Defendant was going to allege to in his written statement without knowing the contents of the sale-deed. A rule of pleading does not require allegations to be made in anticipation of the opponent's answer. In any event after the written statement had been made by the Defendant and the sale-deed was produced in court, the Plaintiff could by way of replication make the averment that the sale-deed was benami and that the real owner was Deep Chand.