HARDEV SINGH JOHAL Vs. PARAMJIT SINGH

JUDGEMENT

(1.) IN this petition filed under Article 227 of the Constituition of India the petitioner has challenged an order denying him amendments to the plaint.

(2.) THE plaintiff instituted a suit for joint possession of the suit property based on natural succession on the death of his father alleging the suit property to be ancestral in nature bought in lieu of property left behind in Pakistan etc. The suit was filed in the year 2007. The petitioner's father, Pritam Singh Johal died on 31.1.2011 during the pendency of the suit. After his death the plaintiff says that he discovered that his father had executed a registered Will on 15 October 2003 with respect to the same property in which the petitioner claims to be one amongst the beneficiaries by succession. Under the Will alleged to be newly found by him he lost his claim for exclusive ownership of the suit property and would have to share it proportionally with his other brother and sisters, as co -sharers. With this turn of events, the petitioner made an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (CPC) to amend the plaint so as to incorporate this discovery.

(3.) THE application has been dismissed by the learned Civil Judge (Jr. Division), Phillaur by a rather long twenty odd page order dated 20 January 2014 impugned. The learned trial judge holds that the plea taken at this stage is inconsistent with the original pleadings in the plaint and therefore the two stands are on altogether different footings and on different facts and therefore a new case is being made out. This is quite evidently true but the fact remains that a sea -change appears to have befallen with the discovery of new and important matter post institution of suit which begs amendment and for this reason alone the petitioner deserves to be permitted to amend his plaint to incorporate such facts, especially when the stage of the suit is at its commencement. The issues have not been framed. For what reason is hard to fathom from the papers placed before this Court. The court has not yet applied its mind to the case. Up to the stage of commencement of suit and before issues are framed, amendments prayed for in the pleadings eminently deserve to be allowed liberally if they do not work injustice to the opposite party or would give rise to a legal bar. Even inconsistent pleas are not abhorred by law, provided parties are not found trying to retract from admissions made in the original pleadings or trying to change the nature of the suit to their undue and unfair advantage on facts they didn't go to court with initially. The learned trail judge has said nothing as to what has transpired since 2007 till when the application for amendment was presented. I have therefore not gone into that question and have confined review of the order on its reasoning.