SUSHILA DEVI Vs. SIR MAUR SINGH @ MAURYA SINGH

JUDGEMENT

(1.) THIS Civil Revision has been filed by the plaintiffs -petitioners against that part of the order dated 27.12.2004 by which the learned Subordinate Judge, 6th. Patna rejected some of the amendments sought in the plaint by the substituted plaintiffs in Title Suit No. 42 of 1997.

(2.) THE aforesaid Title Suit was filed by the predecessor of the petitioners, namely, Balmati Devi wife of Sir Maur Singh (defendant -Opposite Party No. 1) for a decree of partition of her share in the suit properties. it appears that the defendants appeared and contested the suit and the trial commenced on 20.2.2002 when issues were framed. It also transpires that on 29.11.2003 Advocate Commissioner was appointed for examination of the sole plaintiff as witness on commission due to her ailment, but she died before her deposition, whereafter the petitioners were substituted in her place as plaintiffs. It also transpires that immediately thereafter on 23.9.2004 the substituted plaintiffs (petitioners) filed a petition for amendment of paragraph nos. 4, 6, 8, 16. 21 as well as Relief No. 1 and Schedule No. 2 of the plaint and also for adding new paragraphs 7A, 8A and Relief No. 3 in the plaint. The defendants contested the said amendment petition and filed their rejoinder on 8.10.2004 and also filed a short note of argument whereafter by the impugned order the learned court below allowed all the amendments sought except amendments sought in paragraphs 6 and paragraph 8 of the plaint and also except addition of paragraph 7A (part) and 8A of the plaint. The learned court below rejected the aforesiad amendments on the ground that by the said amendments the plaintiffs want to change their admission in the plaint with regard to the place of birth of Amarnath. It is quite apparent that in the relevant paragraphs of the plaint it was stated that Amarnath was bom at village home, but now the substituted plaintiffs want to add the word 'Nanihali ' before the word 'village ' stating that he was born at this Nanihali village and in his Nanihali family. The learned court below rejected the said amendment on the presumption that only the paternal village home can be the village home of a person and not the maternal village home. This presumption in my view cannot be sustained as a person can inherit from both his paternal and maternal sides and hence the amendment sought in paragraphs 6 and 8. of the plaint and the addition of paragraphs 7A and 8A to the plaint appears to be only explanatory. Furthermore, the Hon ble Apex Court in case of Panchdeo Narain Srivastava vs. Km. Jyoti Sahay and Another reported in AIR -1983 SC Page 462 had specifically held that an admission made by a party may. be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn. it is quite apparent from the facts and circumstances of the case that the said amendment should have been allowed as it was necessary to effectively adjudicative upon the issues between the parties as the confusion with regard to the vague statement of "home" was merely sought to be explained by the said amendment.

(3.) THE evidence of the parties has not yet started, it is well settled that after all amendments of pleadings would not amount to decisions on the issues involved and they only serve advance notice to the other side as to the plea which a party might take up. Hence, there cannot be any situation where amendments of pleadings whatever be the nature would cause failure of justice or irreparable injury to any party. On the other hand, if amendment is not allowed it may cause failure of justice or irreparable injury to a party to the suit. Reference may be made in this regard to the decision of the Hon ble Apex Court in the case of Prem Bakshi & Ors. vs. Dharam Dev & Ors. reported in 2002(2) PUR (SC)187.