BALAGOPALA PANICKER Vs. RAMANUNNI NAIR
HIGH COURT OF KERALA
Click here to view full judgement.
(1.)These petitions are by the 32nd defendant and the 2nd defendant respectively praying to revise an order allowing amendment of the plaint in a suit for partition of the Moopil Sthanam and Elaya Sthanam properties of Mannarghat Sthanam. The plaintiff's right to partition of the properties, was originally based on the Madras Act 32 of 1955 treating the Sthanam properties as belonging to the tarwad of the Sthanamdars. That Act having been struck down by the Supreme Court, the plaintiff sought to amend the plaint to base his right to partition under S.7(3) of the Hindu Succession Act, the Moopil Sthanamdar who was in Office when the latter Act came into force having passed away in the meanwhile.
(2.)The Court below allowed the plaint to be amended as prayed for, subject to removal from the plaint the Elaya Sthanam properties to which the Act did not apply. The Subordinate Judge observed that the cause of action is the plaintiffs right to partition and that that would remain unchanged in the amended plaint even though the enactment called to aid to stand the basis for the cause of action is changed. The Hindu Succession Act appeared prima facie to afford a cause of action to the plaintiff and in that view the court below observed that the plaintiff need not be driven to another suit to urge his claim to partition of the same properties as that would tend only to multiplicity of suits without any purpose.
(3.)Counsel contended that the same defects that exploded the Madras Act 32 of 1955 inheres in S.7(3) of the Hindu Succession Act, 1956, affecting the Sthanam properties. That is an objection which cannot be gone into in this interlocutory proceeding for amendment of the plaint, but must be taken as a substantial defence to the suit itself. Elaborate argument was advanced on the ground that the character of the suit would really be changed by the amendment of a suit under one Act as one under a different Act and that it affected the jurisdiction of the Court to allow the amendment. On this point, I am inclined to accept the Subordinate Judge's view. An amendment of a plaint that would change the character of a suit is nowhere prohibited by law. The principle is to allow amendments in pleadings so as to bring out the real dispute between the parties unless it is found that the applicant is guilty of inexcusable laches or the opponent would be materially prejudiced by the amendment. A very common instance is where a plaint for recovery of property on the basis of a lease is allowed to be amended as one for recovery on the basis of title when the lease is denied by the defendant. In Padma Vithoba Chakkaya v. Mohamed Multani ( AIR 1963 SC 70 ) the Supreme Court allowed a suit for recovery of landed property on the basis of title to be amended into one for redemption of a usufructuary mortgage. No question of jurisdiction is therefore involved in allowing amendment of a plaint changing the character of the suit. In the present case it cannot even be said that the character of the suit has been changed in substance.
Copyright © Regent Computronics Pvt.Ltd.