Chitralekha Bukshi vs Abhay Sapru And Anr.
2002 Latest Caselaw 2171 Del

JUDGMENT

Usha Mehra, J.

1. The learned Single Judge by the impugned judgment allowed the amendment of the suit filed by the respondent/plaintiff. The appellant/defendant is aggrieved by the said amendment and, therefore, this appeal.

2. In order to appreciate the challenge in this appeal, we may have a quick glance to the facts of this case. Lt. General B.M. Kaul was the owner of plot No. 16, Block-A admeasuring 1205 sq.yds. Situated at Villages Basant Nagar and Mohammadpur, Munirka (Zone F6) now known as Westend. Lt. General B.M. Kaul built a house on the said land of which he was the exclusive owner. The house in question was built in the year 1968. Lt. General B.M. Kaul died on 18.4.1972. It is alleged that he died intestate. After his death the property in question was mutated with the DDA in the name of his wife Smt. D.K. Kaul, and in the name of his two daughters, Smt. Anuradha Sapru and Smt. Chitralekha Bukshi. They were the only legal heirs left by Lt. General B.M. Kaul. It is further alleged that on the basis of the representation made by the legal heirs of late Lt. General B.M. Kaul, DDA, Co-operative Societies Cell, transferred the leasehold right of the said land in the names of Smt. D.K. Kaul, Smt. Anuradha Sapru and Smt. Chitralekha Bukshi. This was done in the year 1979. Each one of them became entitled to 1/3rd share in the said property. It is further alleged that in the year 1985 Smt. D.K. Kaul and Smt. Anuradha Sapru (defendant No. 2) nominated the plaintiff as their nominee for their respective 1/3rd share in the suit property. Smt. D.K. Kaul died intestate on 25.11.1993. According to plaintiff he became owner of 1/3rd share in the property belonging to Smt. D.K. Kaul being her nominee. Plaintiff requested the Society to substitute his name in place of late Smt. D.K. Kaul, but the Society vide its letter dated 24.4.1996 refused to accede to his request. Aggrieved by that order coupled with the fact that defendant No. 1 Smt. Chitralekha Bukshi the present appellant wrote to the DDA to mutate the share in the property of her mother in her name. Plaintiff objected to the request of appellant. When his grievances were not met by the concerned authority he filed the suit.

3. The suit was contested by the present appellant/defendant No. 1, inter alia, on the ground that Lt. Gen. B.M. Kaul died intestate leaving behind his widow and two daughters who were entitled to 1/3rd share each in the property in question. That by alleged nomination of late Mrs. D.K. Kaul neither plaintiff acquired any right in the property nor on the basis of alleged nomination plaintiff became owner of 1/3rd share left by late Mrs. Kaul. Reliance on alleged family settlement is misplaced. Issues were framed. When the suit was at the stage of recording of the evidence, the plaintiff filed the application seeking amendment of the plaintiff. By the impugned order dated 18.4.2002 the Court allowed the amendment. The present appeal has been preferred primarily on the ground that having admitted throughout that Lt. General B.M. Kaul died intestate, now setting up of a Will after almost 30 years the plaintiff is setting up a new case.

4. Admittedly, the case of the plaintiff throughout had been that Lt. General B.M. Kaul died intestate and so did Mrs. D.K. Kaul. It is also an admitted case between the parties that the property after the death of Lt. General B.M. Kaul was mutated in the record of the society as well as DDA in the name of Mrs. D.K. Kaul and her two daughters i.e. defendants No. 1 and 2. The mutation had taken place way-back in 1978. Lt. General B.M. Kaul died in 1972. The Will never saw the light of the day for all this period. If the plaintiff with his mother i.e. respondent No. 2 had been living in the property in question along with Kauls, then how come this Will was not searched earlier by the plaintiff. So much so even Mrs. D.K. Kaul during her life time never mentioned about the "Will" nor the alleged witnesses to the "Will" ever intimated to Mrs. Kaul about the "Will". In fact having based his claim on the ground of nomination of late Smt. D.K. Kaul and having admitted that Lt. General Kaul died intestate, the case now set up by the plaintiff on the basis of alleged Will, to our mind, amounts to setting up a new case, having a different cause of action. This amendment would completely change the nature of the case. In support of amendment Mr. S.N. Kumar placed reliance on the following decisions: (i) Suraj Prakash Bhasin v. Smt. Raj Rani, ; (ii) G. Nagamma and Anr. v. Siromanamma and Anr. reported in (1996) SCC page 25; (iii) Gajanan Jaikrishan Joshi v. Prabhakar Mohanlal Kalwar ; and (iv) Shikhar Chand Jain v. Digamber Jain Praband Karini Sabha and Ors. .

5. From the bare reading of these decisions, the clear picture which emerges is that if the application for amendment of the plaint does not change the cause of action nor relief claimed materially affect the case then the same can be allowed, but not otherwise. 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. There is no doubt that liberal principles should be followed in allowing the amendments in order to avoid multiplicity of proceedings. But that does not mean that by such an amendment we should permit plaintiff to set up totally a new character of action or cause of action from the one on the basis of which suit was filed. One distinct cause of action cann't be substituted for another, nor the subject matter of the suit can be allowed to be changed by amendment. In the case of Suraj Prakash Bhasin (Supra), the Apex Court was dealing with a case where the suit was filed based on partnership and the plaintiff realised that in order to avoid multiplicity of litigation the dissolution of partnership could finally separate the parties and quantify the shares. Initially the plaintiff in that case filed the suit by way of partition of his share in the super-structure of the theatre. Claim was contested and during the pendency of the suit the plaintiff sought amendment in the shape of additional reliefs i.e. dissolution of partnership together with rendition of accounts and determination of the share therein. All these facts on the basis of which the additional relief was sought were already there in the plaint. Therefore, the Apex Court came to the conclusion that amendment sought did not raise distinct cause of action nor substituted another cause of action than the one set up in the suit and thus allowed the same in order to avoid multiplicity of proceedings. But that is not the case in hand. In the present case cause of action set up in the suit was based on the alleged nomination by late Smt. D.K. Kaul in favor of plaintiff pertaining to her 1/3rd share in the property. Now, he wants to set up his claim on the basis of Will alleged to have been executed by Lt. General B.M. Kaul. On the basis of the alleged Will he is claiming right over the property in question to the exclusion of others. That amounts to substituting one cause of action distinct from the other and hence cannot be allowed.

For the reasons stated above, we cannot subscribe to the view of the learned Single Judge. Appeal is allowed and the impugned order is accordingly set aside but with no order as to costs.