RAM DHAN Vs. DALEL

JUDGEMENT

(1.) This petition is directed against the order of the Trial Court dated 26th August, 1986, whereby the application filed by the defendant for framing additional issues was declined.

(2.) When the plaintiff-respondent filed the suit for possession by way of pre-emption, Ram Dhan one of the defendants was a minor and, therefore, the Trial Court appointed Shri Khazan Singh, father of the defendant to be his guardian. The said suit was filed on 20th of July, 1983. On 25th of July, 1986, the said defendant Ram Dhan moved an application that since he has attained majority, he may be allowed to continue with the suit in his own right and the guardian be removed. This application was contested by the plaintiff. However, the Trial Court vide its order dated 31st of July, 1986, came to the conclusion that the said defendant had attained majority and, therefore, the guardian be removed. At the same time, the Trial Court also directed the plaintiff to file an amended plaint, which was filed on 1st of August, 1986. He filed an amended written statement and also moved an application dated 7th of August, 1986 for framing additional issues arising out of the pleadings after the amendment of the plaint and the written statement. This application was contested by the plaintiff on the ground that the plaint has been amended at the instance of the defendants and the only amendment made is that the defendant was no more a minor and, therefore, the question of filing any fresh written statement to the amended plaint did not arise and the defendant Ram Dhan could not be allowed to take any additional pleas which were not taken earlier in the written statement filed by the guardian on his behalf. This contention prevailed with the Trial Court and it came to the conclusion that "in the present case the amendment was by way of title although it was ordered that amended plaint be filed because in Para No. 3 of the plaint it was pleaded that defendant Nos. 5 to 7 are minors. Since one of them had become major, therefore, it is necessary to amend this para by way of amendment. No new averment was pleaded by the plaintiff. Therefore, the question of taking new objections or averments in the amended written statement filed by the defendants does not arise."

(3.) The learned counsel for the petitioner contended that once the amended plaint is filed, he is entitled to file a fresh written statement taking the additional pleas as well. Thus argued the learned counsel that the view taken by the Trial Court in this behalf was wrong and is illegal.