- (1.) IN this petition filed under Article 227 of the Constituition of India the petitioner has challenged an order denying him amendments to the plaint.
(2.) THE plaintiff instituted a suit for joint possession of the suit property based on natural succession on the death of his father alleging the suit property to be ancestral in nature bought in lieu of property left behind in Pakistan etc. The suit was filed in the year 2007. The petitioner's father, Pritam Singh Johal died on 31.1.2011 during the pendency of the suit. After his death the plaintiff says that he discovered that his father had executed a registered Will on 15 October 2003 with respect to the same property in which the petitioner claims to be one amongst the beneficiaries by succession. Under the Will alleged to be newly found by him he lost his claim for exclusive ownership of the suit property and would have to share it proportionally with his other brother and sisters, as co -sharers. With this turn of events, the petitioner made an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (CPC) to amend the plaint so as to incorporate this discovery.
(3.) THE application has been dismissed by the learned Civil Judge (Jr. Division), Phillaur by a rather long twenty odd page order dated 20 January 2014 impugned. The learned trial judge holds that the plea taken at this stage is inconsistent with the original pleadings in the plaint and therefore the two stands are on altogether different footings and on different facts and therefore a new case is being made out. This is quite evidently true but the fact remains that a sea -change appears to have befallen with the discovery of new and important matter post institution of suit which begs amendment and for this reason alone the petitioner deserves to be permitted to amend his plaint to incorporate such facts, especially when the stage of the suit is at its commencement. The issues have not been framed. For what reason is hard to fathom from the papers placed before this Court. The court has not yet applied its mind to the case. Up to the stage of commencement of suit and before issues are framed, amendments prayed for in the pleadings eminently deserve to be allowed liberally if they do not work injustice to the opposite party or would give rise to a legal bar. Even inconsistent pleas are not abhorred by law, provided parties are not found trying to retract from admissions made in the original pleadings or trying to change the nature of the suit to their undue and unfair advantage on facts they didn't go to court with initially. The learned trail judge has said nothing as to what has transpired since 2007 till when the application for amendment was presented. I have therefore not gone into that question and have confined review of the order on its reasoning. Having given my thoughtful consideration in the matter and having heard the learned counsel and on perusing the papers in my view the order of the learned trial Judge is not sustainable and does not deserve to stand for the reasons which have led to the order declining prayer for amendment of the plaint. The court finds that the proposed amendments change the nature of the trial but records that the issues have not been framed. The court notices a large number of facts, litigation and sale deeds dated 31 August 1977 and 30 October 1980 to which plaintiff was not a party but involved his siblings. There is such large and scattered volume of facts the trial court has picked up from here and there in a patchwork that it has lost its way in its thickets, that the order is obfuscated hard to make sense of. Frankly, I am also lost. All these accumulation of facts and what they mean in their interconnectivity is best left to evidence adduced by the parties. It is too early to adjudge them and not for the court to waste its time on. The plaintiff may look like taking advantage of confusion but the stage to believe him or not is not reached. The trial court has not yet applied its mind to the pleadings since issues have not been framed. The short question was whether the amendment was to be accepted or declined by applying legal principles involving Order 6 Rule 17 of the CPC which appear to this Court to be broadly satisfied notwithstanding that the suit has not progressed. As I read the operative part of the long order I am unable to see what has weighed in the mind except that a fresh trial would start by changing the cause of action. But the trial has not begun though the matter is lingering on for years. Nothing much can be deciphered or made sense of. For one I can remand the matter for a fresh decision. But that will not serve any useful purpose and would further delay the matter. The easiest way to proceed with the suit is to allow the amendments for evidence to be let in after issues are framed and findings come.;