PREM NATH MALHOTRA Vs. LOKESH MALHOTRA

JUDGEMENT

(1.) THIS civil revision by the defendants is directed against an order by which the court below allowed amendment of the plaint and addition of party defendant.

(2.) THE plaintiff -respondent instituted civil suit No. 31 of 2002 seeking decree of partition with respect to his one -third share in the suit properties. In the written -statement which the petitioners filed, they, inter alia, took the stand that the house on plot No. 194 -A/T, Gandhi Nagar, Jammu - one of the items of suit property, exclusively belonged to petitioner No. 1 by virtue of alienation made by his father, and he had gifted it to his wife, Smt. Santosh Malhotra, under a gift deed executed and registered on 12th November, 1998, but no relief had been sought with respect to it in the suit. In view of the stand taken by the petitioners, the respondent filed application seeking amendment of the plaint to the effect that the gift deed was null and void and ineffective, and impleadment of Smt. Santosh Malhotra as a party defendant. The court below took the view that the amendment does not introduce any new cause of action. The plea taken by the defendants regarding transfer of the property by defendant No. 1 in favour of his wife had rendered it necessary for the plaintiff to amend the plaint. Further, the court held that in order to avoid multiplicity of proceedings it was desirable that the proposed amendment be allowed and Smt. Santosh Malhotra be added as a defendant. Accordingly, by the impugned order prayer for amendment was allowed and Smt. Santosh Malhotra was added defendant No. 3. The defendants have come in revision.

(3.) ON behalf of the respondent it was submitted that unless proposed amendment changes nature of the suit, it is invariably allowed. The occasion for amendment arose in view of the plea taken by the petitioners in the written -statement. The respondent was not aware of the gift deed and as soon as he came to know about it through the written -statement, he immediately filed application for amendment. Counsel referred to Article 62 of the Limitation Act. The prayer being bona fide, it was rightly allowed by the court below and any interference by this Court with the impugned order would result in non -adjudication of the real dispute. He pointed out that in terms of Rule 17 of order VI of the Civil Procedure Code amendment should be allowed to decide the real controversy involved in the suit. In support of the submissions reliance was placed on Pankaja v. Yellappa, (2004) 5 Supreme 772 : (2004) 6 SCC 415.