Mahavir Prasad & Anr vs Ratan Lal & Anr

1. This appeal is directed against the judgment of the Single

Bench of the Rajasthan High Court dated 13th December 2000

whereby the order of the Civil Judge, Senior Division, Sikar

dated 24th October 2000 dismissing the application under

Order 6 Rule 17 of the CPC seeking to amend the plaint, has

been reversed. The facts are as under:

2. On 10th October 1974, one Bhanwarlal son of Gulab

Chand, the brother of the respondent herein Ratan Lal,

created a trust styled as Shri Gulabchand Bhanwarlal Sethi

Smriti Nidhi Pranyas Trust. The trust deed was duly 2

registered with the Sub-Registrar, Sikar on the same day. On

27th January 1976, Ratan Lal filed a suit for partition and

declaration against the trustees with respect to the property

which formed a part of the trust. The Civil Judge, Senior

Division framed the requisite issues on 19th August 1977 and

after trial a preliminary decree was passed on 25th May 1979

holding that Ratan Lal was entitled to a half share in the

property and was therefore entitled to a partition by separate

possession by metes and bounds. No appeal was preferred

against this decree by either party. Four of the six trustees

thereafter passed away and the remaining two trustees, the

appellants herein, moved an application on 27th March 1999

for the passing of the final decree. Ratan Lal at this stage

moved an application dated 28th August 2000 under Order 6

Rule 17 for amendment of the plaint now claiming the

ownership of the entire trust property, inter alia, on the

ground that the property was a joint family property consisting

of himself and his brother, the deceased defendant no.1

Bhanwarlal, and alleging that Bhanwarlal had not created the

trust as he had abandoned the idea of doing so and he (Ratan 3

Lal) as sole heir, was thus, entitled to a decree for the entire

property. The appellant filed a reply dated 13th September

2000 to the said application taking several pleas. As already

mentioned above, the amendment application was dismissed

by the Civil Judge vide order dated 24th October 2000 and the

said order has been set aside by the High Court vide the

impugned order dated 13th December 2000 and a direction has

been issued that the amendment should be allowed in the

preliminary decree so that the matter may be finally

determined when the final decree is prepared. It is against

this order that the present appeal has been filed.

3. Mr. Mridul, the learned counsel for the appellant, has

argued that the order of the High Court was based on a

misconception as the prayer in the application under Order 6

Rule 17 was for an amendment to the plaint and not for an

amendment to the preliminary decree and as such the very

basis of the order was erroneous as to the relief claimed. He

has also pleaded that the application filed about 20 years after

the preliminary decree had been passed was highly belated

and ought to have been dismissed on that very short ground. 4

He has finally submitted that the finding of the trial court

which had not been reversed by the High Court, was that a

new case was sought to be put up by the amendment which

was not permissible under law.

4. Mr. Jain, the learned counsel appearing for the

respondent has at the very outset pointed out that the order of

the High Court in so far as it had allowed the amendment of

the preliminary decree was erroneous as by the application

under Order 6 Rule 17 an amendment in the plaint had been

prayed for in the background of the fact that Bhanwarlal had

abandoned the idea of creating the trust and in that view of

the matter the respondent being his sole heir was entitled to

succeed to the entire property. He had also submitted that as

the plaint, as originally laid, had claimed reliefs in accordance

with the proposed amendment the mere fact that some

additional facts in support of those prayers were now being

brought on record would not amount to a change in the nature

of the suit and that in any case if the amendment was to be

disallowed the respondent would have to go in for another suit

which would lead to multiplicity of proceedings. 5

5. We have considered the arguments advanced by the

learned counsel for the parties. In view of Mr. Jain's

statement that it was the amendment of the plaint and not the

amendment of the preliminary decree that had been prayed

for, the very basis of the High Court's order disappears and

the order of the trial court dismissing the application must

ipso facto be restored. We have, however, chosen to go into

other aspects of the matter. Concededly, the preliminary

decree had been passed on 25th May 1979 and this decree had

attained finality. It is also significant that Bhanwarlal, the

creator of the trust, who is said to have later abandoned the

idea of creating the trust was the event which had led Ratan

Lal to claim the entire suit property had died on 18th November

1982 whereas the application for amendment had been filed

on 28th August 2000. We are, therefore, of the opinion that

the application is highly belated both from the date of the

preliminary decree which is 25th May 1979 and from the date

of death of Bhanwarlal which is 8th November 1982 and for

these additional reasons the application must be rejected. 6

6. The learned counsel for the appellant has also submitted

that by the proposed amendment the very nature of the suit

was sought to be changed. Mr. Jain, for the respondent has

however expressed his apprehension that in case some finding

was recorded on this issue, it might prejudice his client's case

at some later stage. In the background and in the above facts

and without expressing any opinion on this matter either way,

we leave this question untouched. The order of the High Court

dated 13th December 2000 is accordingly set aside and the

order of the Civil Judge restored. Ipso facto, the application

for amendment dated 28th August 2000 is dismissed. There

will be no order as to costs.

.................................J. (DALVEER BHANDARI)

...............................J. (HARJIT SINGH BEDI) New Delhi, Dated: May 14, 2009