LAWS(ORI)-1989-3-11

NARESH CHANDRA Vs. NIRMAL CHANDRA

Decided On March 28, 1989
NARESH CHANDRA Appellant
V/S
NIRMAL CHANDRA Respondents

JUDGEMENT

(1.) Defendants 1 and 5 to 8 are the petitioners in this revision against an order allowing amendment of the plaint. The plaintiffs who claimed to be co-sharers of the joint family property brought the suit for partition with the averment that different car sharers were in separate possession according to convenience but the property had not been partitioned by metes and bounds as well as for the relief of preparation of a scheme in respect of the ancestral property of the family deity. It is the case of the plaintiffs that the defendant 1, petitioner 1, is the son of Brundaban through his first wife whereas the plaintiffs Nos. 1 and 2 are his sons through his third wife. The present dispute is concerned with lot No. 1 of 'Ga' schedule property of the plaint in respect of which the plaint averments in para 11 were to the effect that the said property was purchased by Brundaban benami in the name of his first wife Prafulla Kumari and was all along possessed by him during his lifetime and after his death the plaintiffs 1 and 2 and defendant 1 had inherited the property and were in joint possession of the same. In the written statement filed by defendants 1 and 5, the averments in respect of the disputed property was that it had been purchased by their mother Prafulla Kumari out of her own Stridhan fund and was her exclusive Stridhan property. After the issues were settled in the case and the plaintiff 2 was examined as P.W. 1 and some other witnesses had also been examined for the plaintiffs, a petition for amendment of the plaint was filed seeking to amend para 11 of the plaint incorporating the pleading that lot No. 1 of schedule 'Ga' property of the plaint was purchased by the father of Brundaban, i.e. grandfather of plaintiffs 1 and 2 and defendant 1, and that during the Revision Settlement the said property had been recorded as plot Nos. 157, 158, 161, 162 and 163 bearing Khata No. 31 in his name but after him was mistakenly recorded in the settlement in the name of Prafulla Kumari, mother of defendant 1. Except this change, all other averments that Brundaban was possessing the property throughout and that after him the property was jointly possessed by the parties were left intact.

(2.) Mr. Sinha, the learned counsel appearing for the petitioners, has assailed the order allowing the amendment on three counts, viz. (1) the amendment has been allowed without notice to all the defendants in the suit; (2) that the proposed amendment changes the nature and character of the suit; and (3) that the amendment does not satisfy the requirement of O.7, R.3, C.P.C. so far as the first submission of lack of notice to all the defendants is concerned, it is his submission that defendants 1 to 15 are admittedly cosharers of the property as stated in para-1 of the plaint and the other defendants are alienees and that para-11 of the plaint itself shows defendants 42 to 49 being the alienees in respect of lot No. 1 of 'Ga' schedule property and hence notice to all the other defendants was essential before the amendment was allowed. Admittedly, defendants 6, 7, 8, 28, 29, 37, 41 and 42 were set ex parte on 15-5-80 after filing of the written statement. Defendants 11, 12, 16, 17, 18, 19, 20, 21 and 49 were also set ex parte as no written statement war filed by them. Defendants 2 to 4, 9, 10 to 21, 23, 25, 26, 31, 33, 34, 37, 39, 40, 43, 44 and 46 to 48 did not appear in the suit and were also set ex parte. In support of the submission Mr. Sinha has placed reliance on (1975) 41 Cut LT 697 Manmohan Das v. Madhunagar Powerloom Weavers' Co-operative Society, where the law on the question was discussed by a Division Bench regarding the necessity of notice in the matter of amendment. It was held therein that the answer to the question whether notice is essential for acceptance of the amendment would depend upon the nature of the amendment. If the relief sought by way of amendment could be granted on the averments already made in the plaint, separate notice was not necessary on the principle that even without amendment the relief could be granted. Granting of such a relief lies within the general powers of the Court provided the same flows out of the facts already pleaded in the plaint. Where however the amendment introduces a new cause of action and asks for relief which could not have been granted on the original plaint, separate notice for the amendment is necessary.

(3.) The two requirements as stipulated in the decision being that a notice is necessary in the event the cause of action becomes different and where the relief could not be granted on the basis of the original plaint, it is to be seen as to whether on the basis of the principles laid down notice was necessary to have been issued to the defendants who had been set ex parte. There is no dispute that the contesting defendants had notice of the amendment and that the amendment was allowed after contest.