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.