BABU SINGH Vs. DISA SINGH

JUDGEMENT

(1.) K .S. Lodha, J 1. This is a plaintiffs' revision against the order of the learned Addl. District Judge, Sriganganagar, dated 8 10 -82, by which he rejected the plaintiffs' application for amendment of plaint.

(2.) THE plaintiffs had filed a suit for specific performance of an agreement dated 22 -2 -79 against the defendent Disa Singh alleging that the defendant, who was the khatedar of Kilas No. 13 to 17 msasuring 5 Bighas and 18 measuring 1/2 Bigha total 5 /2 Bighas in Square NO. 34 in Chak No. 17 LNP had agreed by a document dated 22 -2 -/9 to sell this land @ Rs. 7,000/ - per bigha and had received a sum of Rs. 72,00a, - on that date. It was also asserted that the possession of the said land had already been handed over to the plaintiffs on the same day i.e. 22 -2 -79. The other terms of the agreement are not material for our present purposes. The case of the petitioners -plaintiffs further was that they had already constructed some kothas of Kilas No. 13 and 18 and are residing there. The defendant in his written statement contested the plaintiffs' claim. His case was that he was not the Khatedar of the said Kilas No. 13 to 17 and 18 in Square No. 34 of 17 LNP but he was only khatedar of 51/4 Bighas in Kilas No. 14 (measuring 1/4 Bighas), 15 to 17 (measuring 3 Bighas) and 24 and 25 (measuring 2 Bighas; of Square No. 34. in Chak No. 17 LNP. He further alleged that the land described by the plaintiffs in the plaint was not recorded in the revenue records in the defendant's Khatedari as alleged by the plaintiffs but it was recorded in the joint khatedari of the defendant's father and other persons. On a partition of the joint khatedari land, the defendant got Kilas No. 14,15 to 27, 24 and 25 as stated above. Kilas No. 13, 18, 23 measuring 3 Bighas and Kila No 22 measuring roughly 3/4 Bighas had fallen to the share of Boota Singh from whom the plaintiffs had already purchased the same by a sale deed in 1978 denied having entered into the alleged agreement with the plaintiffs and termed it as a forgery. He also raised various other pleas with which we are not concerned at present. This written statement was filed on 12 -11 -80. The issues in the casa were framed on 28 -2 81. The case was then fixed for the plaintiffs' evidence However, before leading their evidence, the plaintiffs made an application on 14 -5 81 praying for permission to amend the plaint. It was mentioned in the application that the defendant had told the plaintiffs that he was the khatedar of Kilas No. 13 to 17 measuring 5 Bighas and 18 measuring 1/2 Bigha in Square No. 34 in Chak No. 17 LNP and on that assertion, agreed to sell the same to the plaintiffs by the agreement dated 22 -2 -79. The plaintiffs did not know the exact number of the Kilas as they were illeterate. When the defendant filed his written statement, it came to the notice of the plaintiffs through that written statement that in fact the Kilas Numbers which had been agreed to be sold to the plaintiffs and which are of the khatedari of the defendant, were numbers 14, 15 to 17 and 24 and 25 measuring 5 -1/4 Bighas and that the defendant had no other land in that Square. It, therefore, appeared that the defendant wrongly got the number of the Kilas mentioned in the agreement and on that account in the plaint also the numbers of the Kilas mentioned were wrong Therefor, the plaintiffs wanted to amend the plaint and to substitute the correct numbers of in place of the wrong number. The defendant objected to this application and after hearing the parties, the learned Addl. District Judge rejected the application by his order dated 8 -10 -82. The learned Addl. District Judge was of the view that the application for amendment was belated, that the plaintiffs could not be permitted to go beyond the agreement, which was the basis of the suit, that the plaintiffs wanted to make out a new case by which the defendant would be prejudiced and that according to the defendant, the plaintiffs had already purchased Kilas No. 13 and 18 from Boota Singh and, therefore, the amendment sought could not be allowed. He was also of the opinion that this amendment was not necessary for the decision of the real dispute between the parties. Aggrieved of this, the plaintiffs have come up in revision.

(3.) IT is urged by the learned counsel for the petitioners that the proposed amendment is only with a view to corrct the particulars of the land in dispute. No cause of action or the relief sought in the suit is changed; even the nature of the suit would not change, the subject matter of the suit will also remain the same, only the description, that is the particulars of the land have to be corrected and in this view of the matter, the learned Addl District Judge should have allowed the amendment. He has acted illegally and with material irregularity in rejecting the application. On the other hand, the learned Counsel for the non petitioner has supported the order of the learned Addl District Judge and has contended that the plaintiffs want to change the very subject matter of the suit and naturally by this amendment, a new case is sought to be put forward. The plaintiffs cannot thus be allowed to change the subject matter of the suit and thereby change the cause of action. He also contended that a valuable right has accrued to the defendant by the lape of time and, therefore, also the amendment cannot be allowed. It was also contended that the plaintiffs have wrongly pleaded that the defendant is the recorded khatedar of the land mentioned in the plaint as in its original stage when as a matter of fact this land does not stand in the defendant's khatedari He went on to submit that the plaintiffs had also filed an affidavit in support of his application for temporary injunction swearing that the Kilas No. 13 to 17 and 18 of Square No 34 in Chak No. 17 LNP was the land agreed to he purchased by them from the defendant and had also filed a certificate of the panchayat to the effect that these were the Kilas, which were in possession of the plainiff and in these circumstances, they now cannot be allowed to plead by way of amendment that these were not the Kilas which they had agreed to purchase but the other Kilas now sought to be introduced were purchased by them. It was further pointed out that the plaintiffs had also mentioned the same Kilas as stated in the original plaint in the notice sent by them to the defendant as also in the application before the Sub -Registrar showing their willingness to get the sale deed registered. Learned Counsel for the non -petitioner has relied upon a number of authorities to show that an amendment which brings about a new case inconsistent with the original one or which changes the cause of action or travels beyond the subject matter of controversy in the suit, cannot be allowed. I shall refer to them presently.