P.K. Baisiwala vs R.S. Baisiwala
1995 Latest Caselaw 52 Del

JUDGMENT

Usha Mehra, J.

(1) IA. No. 9895/94. Notice was issued to Smt. Purnima Garg asking her to appear for today as her counsel Mr. K.B. Soni wants to get discharge from this case. Instead of appearing or making any alternative arrangement, she has written a letter dated 4th December, 1994 stating that she cannot appear today due to family circumstances. Mr. K.B. Soni, Advocate does not want to represent her. His power of attorney is accordingly discharged. The application stands disposed.

(2) IA. No. 4955/92, By this application, the plaintiff seeks amendment to the plaint already filed, inter alia, on the grounds that in the said suit he has asked two reliefs-one for partition of Huf properties and rendition of accounts and secondly against the Chanderwati Baisiwala Trust. In order to avoid the legal objection taken by the deft. in their w/s he wants to give up the relief sought against Chandrawati Baisiwal Trust. For that he will file a separate suit for which, he wants permission to sue. Besides due to subsequent events he wants to amend the plaint. His father, deft. No. 1 died during the pendency of the suit. After his death, the shares in the Huf property will now have to be modified and lastly after the death of his father he has also become entitled to partition to other properties left by his father namely individual properties of his father. Therefore, by this application he wants to opt for one relief with permission to file separate suit with regard to the second relief and also to amend his share in the Huf property after the death of his father and claim share in the individual properties left by his father.

(3) Mr. S.N. Kumar, Senior Advocate appearing for the deft. raised serious objection with regard to the amendment sought seeking incorporation of individual properties left by the deceased deft. No. 1. His primary objection to this amendment is that plaintiff is not entitled to any share in the individual properties of deft. No. 1. Moreover the suit for partition is based on the allegations keeping in view the Huf properties. The individual properties and its division is not a real issue. Moreover, there is no question of inheritance of individual properties left by the deceased deft. No, 1. His primary objection to this amendment is that plaintiff is not entitled to any share in the individual properties of deft. No. 1. Moreover the suit for partition is based on the allegations keeping in view the Huf properties. The individual properties and its division is not a a real issue. Moreover, the question of inheritance of the individual property of deceased would give separate and a new cause of action, totally distinct and different from the cause of action already set up. Therefore, so far as partition and claiming of share in the individual property of deft. No. 1 is concerned, that cannot be allowed nor this cause can be allowed to be clubbed with the suit as set up by the plaintiff. With regard to other amendments, Mr Kumar has no objection. Even otherwise in view of Rule 6 in Order 2 Civil Procedure Code . which permits the plaintiff to opt out for either of the reliefs set up, there cannot be any objection so far as seeking amendment on that account is concerned. The plaintiff can continue with the suit of partition and rendition of account. He can file a separate suit with regard to the Chanderwati Baisiwala Trust Property. There can also be no objection and Mr. Kumar rightly conceded that he has no objection with regard to re-defining of the shares after the death of deft. No. 1.

(4) So far as the amendment seeking partition of individual properties of deft. and clubbing of that cause of action with this suit of partition, Mr. Seth contended that it is permissible. He placed reliance on Smt. Abnash Kaur vs. Dr. Avinash Nayyar. to support his arguments. In this case, it was observed that the subsequent events giving rise to fresh cause of action, can be added by the petitioner, provided the subsequent cause of action is also in controversy in the suit and not distinct from the real controversy in issue. These observations fully apply to the facts of this case. In the suit, plaintiff has asked for partition of the Huf properties and his father is also party before the Court. After father's death, according to plaintiff he becomes entitled to his share in the individual properties left by his father, Hence, he can ask partition Along with Huf properties. The real controversy is seeking partition of properties, be that held as Huf or as individual. The nature of the case set up i.e. seeking partition of properties suit would not change if the relief now sought is allowed to be added. Mr. Kumar's contention that plaintiff should file separate suit, to my mind, has no force. That would lead to multiplicity of litigation which should be avoided, if permissible. Since, amendment sought with regard to adding individual properties left by father is not distinct from the real question in issue, therefore, to avoid multiplicity of litigation, this amendment can be allowed. The amendment sought docs not change the case already set up nor the cause of action is distinct. Reliance by Mr. Kumar on the decision of the Supreme Court in Vineet Kumar vs. Mangal Sain Wadhera. is of no help. In that case also it was observed that normally, amendment is not to be allowed, if it changes the case already set up. But where the amendment does not constitute addition of a new cause of action, or raises a new case such an amendment can be allowed. Relying on these observations of the Supreme Court, it can be said that since amendment sought does not change the case already set up hence can be allowed. After the death of his father, the plaintiff can be allowed to add the properties left by his father which were his individual properties. However, the question if plaintiff is entitled to the same or not is question on merits. This cannot be determined at this stage. For the reasons stated above, the application is allowed subject to payment of Rs. 3,000.00 as costs.