MEHMOOD HASSAN Vs. MANZOOR HASSAN AND ANOTHER

JUDGEMENT

(1.) This petition is by the defandant calling in question the order of the trial court declining request to amend the written statement. Having regard to the facts obtaining on file the impugned order in the view of this Court cannot stand judicial scrutiny for the reason the defendant by way of amendment sought under Order 6 Rule 17 CPC prayed that he may be permitted to take an additional defence plea of a partition of the property having taken place in the past, between the father of the plaintiff and the defendant who are brothers. Alternative and inconsistent pleas are not per se abhorrent to pleadings so long as statements and admissions made in pleadings are not retracted and resiled from, in order to change the nature of the suit or that the defence was not taken in the original pleadings. In the original written statement, the defence is based on a gift of property made by the father to defendant No.1. That statement of defence is not being withdrawn by the defendant. It is at best an additional plea which is not mutually destructive of the planks of attack. Therefore, the trial Court erred in dismissing the application for amending the written statement to include a plea of a partition suffered by the members of the family.

(2.) Learned counsel for the petitioner informs that the plaintiff's evidence has begun and the affidavits of two of the witnesses have been submitted before the trial Court by way of examination-in-chief and the cross-examination is to be conducted by the petitioner on those affidavits.

(3.) The case is now fixed before the trial Court on July 24, 2014. It is well embedded that pleadings should be permitted to be amended liberally so as to put an end to the real disputes and controversies arising between the parties in a single proceeding which would avoid a multiplicity of litigation. No right appears to be settled on the plaintiffs who are respondents herein, for this Court to hear them in the present petition. Issuing notice to the respondents would delay the matter for insufficient reason. If the impugned order is allowed to stand, it may result in miscarriage of justice.