ORDER
D.K. Jain, J.
1. By this application under order VI Rule 17, CPC defendant no.2, hereinafter referred to as the applicant, seeks leave to amend the written statement filed sometime in September 1985, by incorporating two new paragraphs mentioned in the application. In substance, the applicant wants to raise a plea that he has become absolute owner of the back portion of the
property bearing no.7/32, Roop Nagar, Delhi by virtue of a Will dated 27 October 1983 executed by late Sh.Sant Singh, co-owner of the suit property and defendant no.1 herein.
2. The application has emerged under the following circumstances :-
The suit property originally belonged to one Sh.Man Singh, father of the plaintiff and defendant no.1. He had executed a Will on 1 September 1956, bequeathing the property to his wife, Smt.Jeevan Dei. Sh. Man Singh died on 22 June 1972 and his will was probated on 30 August 1973. Smt. Jeevan Dei, on her part, executed a will on 5 September 1974, bequeathing specific portions of the suit property to her two sons namely, Sh. Dalip Singh-the plaintiff and Sh.Sant Singh-defendant no.1. A site plan was also attached with the Will specifying the respective portions of two brothers. Smt.Jeevan Dei died on 29 June 1977 and on a joint application by the plaintiff and defendant no.1, High Court of Malawi, Central Africa, granted probate in respect of the said will. On the strength of the said probate the property was mutated by the DDA in the joint names of the plaintiff and defendant no.1.
3. It seems that after mutation defendant no.1 entered into an agreement, dated 16 January 1981, to sell his share in the property with the applicant. Perhaps there was some default on the part of defendant no.1 in not executing the sale deed in favour of the applicant with the result that in the year 1981 the applicant filed a suit (No.1399/81) against defendant no.1 for specific performance of the said agreement and on 17 November 1983 a consent decree was passed in favour of the applicant. Thereafter, admittedly, the applicant has been in possession of the back portion of the property but sale deed in respect thereof has not yet been executed. There
being some dispute with regard to the area in possession and occupation of the applicant, the plaintiff filed the present suit for partition of the entire property by metes and bounds on the plea that sale deed having not been executed in favour of the applicant-defendant no.2, the title in the property still remained with defendant no.1, there had been no partition of the property by metes and bounds between the plaintiff and defendant no.1, he sues for partition of the same. However, confronted with the situation that late Smt.Jeevan Dei had already effected partition of the shares which were to go to her sons, the suit for partition may not be maintainable, the
plaintiff, with the permission of the court, amended the plaint; converted it into a suit for possession of portion of the suit property by way of partition or otherwise, with an alternative prayer for possession of the strip of land admeasuring 56 sq.yards, which was alleged to have been encroached upon by the applicant.
4. In the written statement filed by the applicant, to the original plaint as well as to the amended plaint, his stand is that he is purchaser of defendant no.1’s portion of the property for consideration and is in exclusive, uninterrupted and independent possession thereof, including the alleged excess portion, by virtue of decree dated 17 November 1983 as was in possession of Sant Singh on 16 January 1981, when the registered agreement to sell was concluded between him and Sant Singh. Defending possession of the entire portion in his occupation, it was pleaded by the applicant that though Smt.Jeevan Dei had demarcated the property in two portions but after her death the plaintiff and Sant Singh found it difficult to enjoy the separate portions so demarcated in the plan annexed with the will and, therefore, by their mutual consent, accord and approval, the two brothers adjusted the dividing line; got a fresh plan prepared; substituted the same
in place of the plan annexed with the will; executed an agreement on 13 October 1980; in token of acceptance of this new arrangement, signed the new plan and the agreement to sell, dated 16 January 1981, by Sant Singh in favour of the applicant was based on the said new arrangement arrived at between the two brothers. Based on these pleadings, the main issue struck on 12 February 1987 for trial is as to what is the effect of agreement dated 13 October 1980 and whether any plan was got prepared in pursuance of the said agreement.
5. During the pendency of the suit for trial, Sant Singh died on 25 November 1994 and an application (IA No.1611/95) was moved by the plaintiff under order 22 Rule 4 CPC for bringing on record his legal representatives. The applicant filed reply to the application on 22 March 1995 opposing the impleadment of legal representatives on the plea that Sant Singh had executed a will on 27 October 1983 bequeathing the rear portion of the property to the applicant and, therefore, his legal representatives were left with no right or title in the suit property. This application was, however, allowed on 31 Janaury 1997 and the legal representatives of Sant Singh were imp leaded as parties to the suit. Further trial in the suit was delayed on account of difficulty experienced in serving the legal representatives of Sant Singh, who were ultimately served by way of publication and vide order dated 27 January 1998, with the consent of counsel for the plaintiff and the applicant, a court commissioner was appointed to record evidence in the suit and for that purpose the suit was directed to be listed before the Joint Registrar on 5 February 1998.
6. The applicant has now moved the present application for amendment on 6 February 1998 on the plea that by virtue of will dated 27 October 1983, executed by Sant Singh, defendant no.1, he has become absolute owner in respect of the portion of the property in his possession and that the amendment has been necessitated on account of the subsequent event of death of Sant Singh on 25 November 1994.
7. It is pleaded that this fact could not be mentioned in the written statements filed by the applicant because at that point of time Sant Singh was alive.
8. The application is opposed by the plaintiff, inter alia, on the pleas that the amendment sought : i) is contradictory to earlier pleas, ii) it is not necessary for adjudication of issues involved in the suit, iii) it is highly belated as the facts now sought to be incorporated were already in the knowledge of the applicant and iv) it is malafide, filed with a view to delay the trial.
9. I have heard learned counsel for the parties.
10. The principle which should govern the question of granting or disallowing amendments are well settled. In Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Ors which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: a) not working injustice to the other side, and b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.
11. The short question for consideration, therefore, is : whether the amendment sought by the applicant would introduce a new or inconsistent defense or introduce a different and new cause of action or whether it is necessary for the purpose of adjudicating the real question in controversy between the parties.
12. Having considered the matter in the light of earlier pleadings of the parties, I am of the view that the proposed amendment cannot be allowed because it will not only introduce an entirely different and new cause of action, it is also unnecessary for the purpose of determining the real question in controversy, clearly spelt out in the settled issues. As noted
above, the entire defense of the applicant was based on the agreement to sell dated 16 January 1981, executed in his favour by deceased defendant no.1 and the decree obtained by him on 17 November 1983 against the said defendant. Apart from these two factors no other averment was made as to the facts or grounds on which the applicant had based his title to the portion of the property in question. The factum of will dated 27 October 1983, executed a month prior to the passing of consent decree, was neither relevant nor even remotely mentioned. Indeed, it was not considered necessary for the reason that the plaintiff was not disputing the transfer by
defendant no.1 of his share to the applicant. Plaintiff’s grievance seemed to be only with respect to the area which was to fall to his share. This is borne out from the plaint wherein the plaintiff, in para 6 of the plaint takes notice of but neither challenges the agreement to sell dated 16 January 1981 by defendant no.1 with the applicant nor the decree obtained
by the applicant on 16 November 1983 against the said defendant.
13. In this view of the matter, I feel, that the only matter in controversy to be decided in the suit being whether the applicant is in possession of some extra portion of the said property, which defendant no.1 was not entitled to transfer in his favour, the will now set up has no relevance to the real issue between the contesting parties, nor can it be a positive
defense to the real matter in controversy. The amendment sought for by the applicant is not material for deciding the said controversy between the parties.
14. In my opinion, therefore, allowing such an amendment would not only amount to allowing the defendant to present a totally distinct, new and inconsistent case, the proposed amendment is otherwise neither relevant nor necessary for disposal of the matter in dispute and, therefore, cannot be allowed.
For the foregoing reasons the application being devoid of any merit, fails and is accordingly dismissed.