ORDER
1. Heard the learned Counsel on both sides.
2. These two revisions can be disposed of by a common order since they arise out of the same suit. CRP No. 4813 of 1997 is filed by the defendants questioning the order passed by the lower Court allowing an
application filed by the plaintiff for amendment of the plaint. The other revision is filed by the plaintiff questioning a docket order dated 22-8-1997 holding that the memorandum of partition sought to be tendered by the plaintiff in evidence is not admissible.
3. The suit is filed for declaration of title and for possession of the plaint schedule property on the plea that the suit property fell to the share of the plaintiff in an oral partition between him and his brothers and that the defendants trespassed into the same. However, in the plaint neither the date of the alleged oral partition nor the date of the alleged trespass by the defendants was mentioned and the relevant portions in the plaint were kept blank. The suit was filed in the year 1990. The trial commenced in 1996. The evidence on the plaintiff’s side commenced on 27-8-1996 and it was closed on 27-12-1996 after examining five witnesses. The defendants’ side was commenced on 24-1-1997 and it was closed on 10-3-1997 after examining four witnesses. Thereafter the arguments on the plaintiff’s side were completed on 21-10-1997 and the arguments on the defendants’ side were commenced on 28-10-1997. While the evidence on the plaintiffs side was being recorded, the plaintiff sought to tender in evidence an alleged memorandum of partition of the year 1968 purporting to record a past partition made orally. By the docket order dated 22-8-1997, the lower Court held that the alleged memorandum of partition is not admissible in evidence. It is against this order that the plaintiff has filed CRP (SR) 2630 of 1998. Subsequently the plaintiff filed IA No.2277 of 1997 seeking leave to amend the plaint by mentioning that the alleged oral partition took place much prior to the year 1968 and that the defendants trespassed into the suit property in the month of March, 1990. This application was filed on the allegation that the time of the alleged oral partition and the alleged trespass by the defendants was not originally mentioned in the plaint
inadvertantly or by oversight or by mistake and blanks were left without being filled up in paras 3 and 14 of the plaint. It is further stated that the said mistake was not deliberate or intentional and the same was noticed only at the time of the arguments when the Counsel happened to go through the plaint.
4. The defendants opposed the application for amendment on the grounds that the application is very much belated, that the plaintiff cannot be permitted to take inconsistent pleas and cannot be permitted to fill the lacuna in his case and that the whole cause of action will be changed if the proposed amendment is permitted.
5. The lower Court, while conceding that the plaintiff cannot be permitted by way of amendment to take new plea which is inconsistent with the earlier plea or which introduces a new cause of action, however, took the view that the amendment should be construed liberally and that it is better to give an opportunity to the plaintiff to avoid multiplicity of proceedings.
6. It is true that amendment of pleadings can be permitted at any stage of the proceedings and delay by itself is not a ground for disallowing an amendment It is, however, well settled that a party cannot be permitted to introduce by way of amendment a plea which is inconsistent with the earlier plea or which introduces a new cause of action. So also a party cannot be permitted to fill up the lacunae in his case. Whether the omission to mention the dale of the alleged oral partition and the alleged date of trespass by the defendants was an accidental mistake or whether it was due to the fact that the plaintiff himself was not sure of the dates and wanted to fill up the same subsequently as it suits him is a matter which has to be considered. If it is a case of purely accidental error in not filling the blanks, the Court may be justified in allowing the amendment if the
same does not bring about any change in the cause of action. However, in the instant case, the issue is compounded by the fact that the plaintiff has come forward with a new case for the first time in the evidence that the alleged oral partition was subsequently recorded in writing in a memorandum of partition and the same was sought to be introduced in evidence. Originally in the plaint there was no mention about any written memorandum of partition. The plaintiff has thus come forward with a new case in the evidence. However, in the proposed amendment no mention is sought to be made about the alleged memorandum of partition in writing and the plaintiff wants to stick to his earlier plea that there was an oral partition. Originally in the plaint it was mentioned that the oral partition took place ‘in’ and the year was left blank. But now by the proposed amendment the plaintiff wants to plead that the oral partition took place “much prior to 1968”. It is, therefore, evident that the plaintiff has come forward with inconsistent pleas from time to time. That apart, the application is very much belated and it has been filed after the trial of the case has been completed and the suit is at the stage of arguments. In this fact-situation it is difficult to accept the case of the plaintiff that the mistake was not noticed earlier. I am, therefore, satisfied that the lower Court has acted with material irregularity in allowing the petition for amendment of the plaint. The order passed in IA No.2277 of 1997 is accordingly set aside and CRP No.4813 of 1997 is allowed.
7. Coming to the other CRP i.e., CRP (SR) 2630 of 1998, I do not see any valid grounds to interfere with the order dated 22-8-1997 and I do not find any merit in the CRP. The CRP is accordingly dismissed. No order as to costs.