On 16th December 2002, the Hon’ble Jammu & Kashmir and Ladakh High Court in a Single Judge Bench consisting of Justice Sanjay Dhar expounds that amendments to a written statement can be allowed even if it amounts to addition of new grounds of defence but adding, altering or substituting a new cause of action in the plaint is certainly objectionable. (Abdul Aziz Bhat Vs. Mohammad Iqbal Bhat And Ors.)
The bench was hearing a plea wherein the petitioner had challenged the order passed by the Munsiff court according to which the application filed by him seeking amendment of the plaint was dismissed.
Facts of the case:
The petitioner (original plaintiff) had filed a suit against respondents No.1 to 7 seeking a decree of declaration, declaring the adoption deed dated 28.04.2006 executed by deceased Salam Bhat in favour of defendant No.1-Mohammad Iqbal, as null and void, ineffective, inoperative and fraudulent so far as rights of the plaintiff were concerned. The petitioner claimed that he is owner in possession of one half of the property left behind by his uncle, deceased Salam Bhat, whereas other half is owned and possessed by the defendants who also happened to be the successors-in-interest of another cousin brother of Salam Bhat.
In the original plaint, it was claimed by the petitioner that the adoption deed in favour of defendant no. 1 was null and void and the property of the deceased had to devolve upon his heirs as per Muslim Personal Law. However, by way of proposed amendment, the plaintiff claimed that in the absence of adoption deed, he would be the lone legal heir entitled to ownership and possession of the property left behind of deceased. The petitioner had sought substitution of the relief of partition with the relief of possession against the defendants with a permanent injunction restraining the defendants from changing the nature of one half of the suit land, which was in their possession.
In the para relating to cause of action, the plaintiff had sought amendment by deleting the existing para and incorporating in its place the plea that when possession of one half of the suit land was sought by the plaintiff from the defendants, they avoided to do so and ultimately refused to part with the possession of one half of the suit land in favour of the plaintiff.
The application of the plaintiff was dismissed on the ground that “the amendment sought by the plaintiff is not necessary for adjudication of the matter pending before the court.” Moreover, it was observed by the trail court that if the amendment was allowed, it would cause an irreparable loss to the defendants.
The petitioner challenged the impugned order on the grounds that the amendment sought was necessary for determining the real controversy between the parties. It was further asserted that for the purpose of advancing the cause of Justice, the amendment sought by the plaintiff should had been allowed.
Observations of the court:
The Hon’ble court referred to the case of Revajeetu Builders and Developers vs. Narayanaswamy and Sons and others, and B. K. Narayana Pillai vs. Parameswaran Pillai and another, and observed that “the Court has to be liberal in allowing the prayer for amendment of pleadings. However, when it comes to the amendment of the plaint, there is a slight difference in the sense that while allowing amendment of a written statement, general principle is that the amendment should be allowed even if it amounts to addition of new grounds of defence, substituting or altering a defence or taking inconsistent pleas in the written statement, the same principle cannot be applied while considering an application for amendment of a plaint as the same stands on a different footing. Adding, altering or substituting a new cause of action in the plaint is certainly objectionable.”
The bench further added that inconsistent pleas can be taken and even subsequent events can be allowed to be incorporated by way of amendment but not when the total cause of action is going to be changed. “A liberal approach has to be adopted while considering an application for amendment of the pleadings in order to avoid multiplicity of litigation but it does not mean that the plaintiff should be permitted to set up a total new cause of action which are inconsistent with the pleadings of the original plaint.”
Accordingly, the bench found the petition devoid of merit and dismissed it while upholding the order passed by the learned trial court.
Case: Abdul Aziz Bhat Vs. Mohammad Iqbal Bhat And Ors.
Bench: Justice Sanjay Dhar
Citation: OWP No.1353/2011
Date: December 16, 2022.
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