KULDIP KUMAR ETC Vs. BANI PARSAD

JUDGEMENT

(1.) By way of this revision, the petitioners have challenged the order of the Sub Judge, 2nd Class, Ambala City, dated September 18, 1978, declining their prayer to amend the written statement.

(2.) The petitioners wanted to amend the written statement to as to pleaded a special custom to the effect that amongst the Rajputs (Suniars), sister of daughter's son could be adopted. It has already been pleaded in the written statement that Kuldip Kumar was the adopted son of Ascharaj Lal whose estate was in dispute. The amendment has been disallowed solely on the ground that a party cannot be allowed to amend his pleadings to bring in conformity with the defence adduced by him and reliance for this proposition was placed on Khali and others v. Shadhaba Bawa and others, 1967 AIR(Ori) 58 The reason given for disallowing the amendment is wholly without any oasis. In the present case, the defendants were never allowed to lead evidence to prove the alleged custom. Even if they had been allowed to do so, I do not find any reason to hold that the amendment should be disallowed on this ground.

(3.) It was then contended by the learned counsel for the respondents that the application has been moved after a long delay and that the defendants had already availed of an opportunity to amend the written statement and, therefore, they could not be allowed a second opportunity for that purpose. None of these contentions are tenable. The more delay is no ground to refuse the prayer to a amend the pleadings unless it can be shown that by that delay a valuable right has accrued to the other party. There is neither any averment nor any argument that by this delay any right has accrued to the plaintiffs. As regards the contention that it was a second amendment sought by the defendants, it has been pointed out by the learned counsel for the petitioners that the first amendment was carried out in accordance with the remand order by the appellate Court and no prayer was made by the defendants to amend their pleadings. So that as it may, even if it was a second prayer that alone would not be a ground in decline the amendment if it was necessary to do justice between the parties. It has been already pleaded that Kuldip Kumar had been adopted by Ascharj Lal and this amendment has been brought only to introduce a further plea to support the validity of that adoption. The trial Court, therefore, rejected the application for amendment on wholly misconceived ground and thus acted illegally in the exercise of its jurisdiction.