RAMESH DUTT BHOGIRAM SHARMA Vs. DEV BHOGIRAM SHARMA

JUDGEMENT

(1.) LAW as to amendment of pleadings contained in Rule 17 of Order 6 of the Code of Civil Procedure, 1908 has been subject-matter of discussion in umpteen number of cases. The general principles are so well settled by the law laid down by the Apex Court, also illuminated in several decisions of this Court, as hardly need to be reviewed and restated. For principles see - Ganesh Trading Co. v. Moti Ram, AIR 1978 SC 484; Jai Jai Ram Manohar Lal v. National Building Material Supply, AIR 1969 SC 1267; L. J. Leach and Co. Ltd. and Anr. v. Messrs Jardine Skinner and Co. , AIR 1957 SC 357 and P. H. Patil v. Kalgonda Shequonda Patil and Ors. , AIR 1957 SC 363. Nevertheless, the difficulty faced by subordinate Courts while dealing with an application seeking an amendment resultinng in withdrawal of admission contained in the pleadings can be understood. The present one is such a case.

(2.) A bare reading of Rule 17 shows that once the Court has formed an opinion that the amendment prayed for is necessary for the purpose of determining the real question in controversy between the parties, it shall be allowed. In other matters, the Court has been conferred with a discretion in permitting amendment, or alteration in pleadings, in such manner and on such terms as may be deemed just by the Court. The discretion so conferred, like all other judicial discretions, has to be exercised judicially, guided by reason and not at whim, caprice or fancy. The overriding consideration is that the procedural laws are handmaid of justice; they are intended to facilitate and not to obstruct the course of substantive justice. In civil litigation costs is a panacea which heals every sore unless the facts and circumstances of a particular case indicate that the indulgence shown by the Court may itself become a source of sores.

(3.) THE plaintiff/non-petitioner No. 1 filed a suit for declaration of title and partition describing the two properties forming subject-matter of suit in para 2 of the plaint. It was averred that the parties were sons, daughters and widow of late Bhogiram Sharma and the properties though self acquired by the deceased, were liable to be partitioned on his death, amongst his heirs. The defendant No. 1 in his written statement stated that not the two alone described by the plaintiff but four other immovable properties and a few movables too were liable to be partitioned between the parties because they were all self-acquired properties of late Bhogiram, having been succeeded to jointly by all the parties consequent to the death of the holder. It was also submitted that the suit as filed by the plaintiff was liable to be dismissed for failure to include in suit all the available properties liable to be partitioned.