KARNAIL SINGH Vs. PAL SINGH

JUDGEMENT

(1.) THIS order will also dispose of Civil Revision No. 57 of 1988 as the facts are common in both these cases and arise out of one suit.

(2.) KARNAIL Singh and Mast Singh plaintiffs filed a suit for declaration for declaring the judgement and decree dated 10.2.1983 to be null and void qua their rights and for declaring the plaintiffs and defendant No. 4 Megh Singh their father as co-partner and proprietor in the suit land. The trial Court decreed the said suit on 2.1.1987. Appeal against the said judgment and decree was filed. Therein the defendants moved two applications, one for amendment of the written statement which gives rise to Civil Revision No. 56 of 1988 and the other for permission to produce additional evidence which has given rise to Civil Revision No. 57 of 1988. By virtue of the application for amendment of the written statement the defendants wanted to plead that Mal Singh their grandfather had executed registered Will dated 29.1.1965 in favour of Megh Singh their father and he was the only heir of Mal Singh on the basis of that Will which was the last Will of Mal Singh. According to the defendants, the property devolved upon his son Megh Singh through the Will and it thus becomes the self-acquired property of Megh Singh. Thus according to the defendants even if the judgment and decree suffered by Mal Singh in favour of Pal Singh and other defendants is set aside, the suit land shall devolve upon Megh Singh on the basis of that Will. That application was opposed by the plaintiffs inter alia on the ground that the defendants are setting up a new case in the garb of this amendment which was not warranted. However, the learned Additional District Judge, Patiala allowed the said application for amendment with the observations that "If the land in suit is proved to be Joint Hindu Family coparcenary property in the hands of Mal Singh qua Megh Singh under Section 80 of the Hindu Succession Act, Mal Singh could will away his own share in the ancestral, Joint Hindu Family and coparcenary property. He may not have been able to will away the entire Joint Hindu Family and coparcenary property. At this stage, however, we have not to look to this fact whether the proposed amendment will or will not advance the case of Pal Singh etc. as that will be a matter requiring consideration after the proposed amendment is allowed". As a consequence of this order subsequent order dated 26.10.1987 was passed allowing the defendants for producing additional evidence.

(3.) AFTER hearing the learned counsel for the parties, I am of the considered view that there was absolutely no occasion for allowing amendment at the appellate stage. Of course, there is no bar for the court to allow the amendment of the pleadings at the appellate stage but that does not mean that the party is entitled to seek amendment as a matter of right particularly in appeal. It was held by this Court in Ranjit Kaur v. Ajaib Singh, AIR 1984 P&H 292 that the fact that the amendment could be allowed at any stage and that the prayer to that effect could not be declined on the ground that the application made in that behalf was a delayed one, does not mean that the parties to the proceedings are entitled to seek amendment of the pleadings at any stage as a matter of right. It only means that if the court finds that the proposed amendment is necessary for the determination of the controversy between the parties. The amendment may be allowed even at a late stage. Here again the jurisdiction of the appellate Court is further limited because after the passing of the decree by the trial Court, the rights of the parties come into being and then a very strong case is to be made out why the pleas sought to be taken by way of amendment could not be taken earlier. Even in the Supreme Court judgment relied upon by the learned counsel for the respondents i.e. Iswardas v. State of M.P., AIR 1979 S.C. 551 it was observed :