Order 7 Rule 3, C.P.C. requires that where the property involved in the suit is immovable, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. As the requirement of the rule itself shows, giving boundary of the land is not essential if the survey number or plot number which makes the plot identifiable is given and necessarily a suit cannot be dismissed merely because the boundary is not stated though the identifying plot number is given.
1. Defendants 1 and 5 to 8 are the petitioners in this revision against an order allowing amendment of the plaint. The plaintiffs who claimed to be co-sharers of the joint family property brought the suit for partition with the averment that different co-sharers were in separate possession according to convenience but the property had not been partitioned by metes and bounds as well as for the relief of preparation of a scheme in respect of the ancestral property of the family deity. It is the case of the plaintiffs that the defendant 1, petitioner 1, is the son of Brundaban through his first wife whereas the plaintiffs Nos. 1 and 2 are his sons through his third wife. The present dispute is concerned with lot No. 1 of 'Ga' schedule property of the plaint in respect of which the plaint averments in para 11 were to the effect that the said property was purchased by Brundaban benami in the name of his first wife Prafulla Kumari and was all along possessed by him during his lifetime and after his death the plaintiffs 1 and 2 and defendant 1 had inherited the property and were in joint possession of the same. In the written statement filed by defendants 1 and 5, the averments in respect of the disputed property was that it had been purchased by their mother Prafulla Kumari out of her own Stridhan fund and was her exclusive Stridhan property. After the issues were settled in the case and the plaintiff 2 was examined as P.W. 1 and some other witnesses had also been examined for the plaintiffs, a petition for amendment of the plaint was filed seeking to amend para 11 of the plaint incorporating the pleading that lot No. 1 of schedule 'Ga' property of the plaint was purchased by the father of Brundaban, i.e. grandfather of plaintiffs 1 and 2 and defendant 1, and that during the Revision Settlement the said property had been recorded as plot Nos. 157, 158, 161, 162 and 163 bearing Khata No. 31 in his name but after him was mistakenly recorded in the settlement in the name of Prafulla Kumari, mother of defendant 1. Except this change, all other averments that Brundaban was possessing the property throughout and that after him the property was jointly possessed by the parties were left intact.
2. Mr. Sinha, the learned counsel appearing for the petitioners, has assailed the order allowing the amendment on three, counts, viz. (1) the amendment has been allowed without notice to all the defendants in the suit; (2) that the proposed amendment changes the nature and character of the suit; and (3) that the amendment does not satisfy the requirement of Order 7, Rule 3, C.P.C. so far as the first submission of lack of notice to all the defendants is concerned, it is his submission that defendants 1 to 15 are admittedly co-sharers of the property as stated in para-1 of the plaint and the other defendants are alienees and that para-11 of the plaint itself shows defendants 42 to 49 being the alienees in respect of lot No. 1 of 'Ga' schedule property and hence notice to all the other defendants was essential before the amendment was allowed. Admittedly, defendants 6, 7, 8, 28, 29, 37, 41 and 42 were set ex parte On 15-5-80 after filing of the written statement. Defendants 11, 12, 16, 17, 18, 19, 20, 21 and 49 were also set ex parte as no written statement was filed by them. Defendants 2 to 4, 9, 10 to 21, 23, 25, 26, 31, 33, 34, 37, 39, 40, 43, 44 and 46 to 48 did not appear in the suit and were also set ex parte. In support of the submission Mr. Sinha has placed reliance on (1975) 41 Cut LT 697 Manmohan Das v. Madhunagar Powerloom Weavers' Co-operative Society, where the law on the question was discussed by a Division Bench regarding the necessity of notice in the matter of amendment. It was held therein that the answer to the question whether notice is essential for acceptance of the amendment would depend upon the nature of the amendment. If the relief sought by way of amendment could be granted on the averments already made in the plaint, separate notice was not necessary on the principle that even without amendment the relief could be granted. Granting of such a relief lies within the general powers of the Court provided the same flows out of the facts already pleaded in the plaint. Where however the amendment introduces a new cause of action and asks for relief which could not have been granted on the original plaint, separate notice for the amendment is necessary.
3. The two requirements as stipulated in the decision being that a notice is necessary in the event the cause of action becomes different and where the relief could not be granted on the basis of the original plaint, it is to be seen as to whether on the basis of the principles laid down notice was necessary to have been issued to the defendants who had been set ex parte. There is no dispute that the contesting defendants had notice of the amendment and that the amendment was allowed after contest.
4. The cause of action for the suit has been stated in para-16 of the plaint as the refusal by the co-sharers of the claim of the plaintiffs for a mutual partition. Such cause of action is not purported to be charged by the amendment. The essential case of the plaintiffs is that they are the co-sharers in respect of the disputed property and are entitled to shares therein. Hence the cause of action for them to demand partition remains the same, namely, refusal to accede to their request for a partition. So far as the question whether the relief can be granted on the basis of the original averments is concerned, it is to be seen that there is no substantial difference so far as the rights of the plaintiffs vis-a-vis the property is concerned, since the effect of the averments both in the original plaint and the amendment is that they are claiming partition on the basis of their being co-sharers in the property of their father, either purchased by him Benami or inherited by him from his father. There is thus nothing in the averments which disentitles the plaintiffs to get the relief claimed since the basis of their right remained essentially the same, i.e., the plaintiffs being the successors-in-interest of their father and being members of the joint family. As such I would hold on the authority of the decision cited that no notice to the defendants already set ex parte was necessary and that no fault could be found with the order of the learned Subordinate Judge on that count.
5. Next is the question whether the proposed amendment changes the nature and character of the suit. As has been discussed in the foregoing para, the nature of the suit has essentially remained the same it being the claim of the plaintiffs for partition of the joint family properties and merely because the mode of acquisition of the property by the father is sought to be changed, the nature of the suit or the cause of action is in no way changed and hence this submission of Mr. Sinha must also accordingly fail. The last submission on the basis of Order 7, Rule 3, CP.C. is that even in the original plaint as regards lot No. 1 of schedule 'Ga' the plaintiffs did not give the boundary of the property and that in the proposed amendment also even though new plot numbers have been given, boundaries thereof have not been given. Order 7 Rule 3, C.P.C. requires that where the property involved in the suit is immovable, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. As the requirement of the rule itself shows, giving boundary of the land is not essential if the survey number or plot number which makes the plot identifiable is given and necessarily a suit cannot be dismissed merely because the boundary is not stated though the identifying plot number is given. The substance of para-11 of the plaint after the amendment if accepted would, in substance, be that lot No. 1 of the 'Ga' schedule property had been purchased and possessed by the father of Brundaban in his own right and the same had been recorded in his name in the Revision Settlement as plot Nos. 157, 158, 161, 162 and 163 under Khata No. 31 and after him the property got wrongly recorded in the name of Prafulla Kumari in the Settlement but in spite of such fact Brundaban was exclusively possessing the same in his own right and that plaintiffs 1 and 2 and the defendant 1 were possessing the property jointly along with the other properties after the death of their father as his heirs. The averments would show that the amendment relates to lot No. 1 of schedule 'Ga' property described in the plaint itself and in the Revision Settlement plot numbers are proposed to be given only by way of statement of a fact. In schedule 'Ga' the plot numbers, the Khata numbers and other details of the Current Settlement and the areas of the plots have been given, the total being Ac. 2.07 dec. Hence, the identifiable plot numbers having been given, there may not be any difficulty in identifying the plots. Even apart from that, if at all the plaint is defective because of proper identifying statements having not been made in respect of schedule 'Ga' originally, it is not a defect so far as the proposed amendment is concerned and hence cannot be a bar for allowing the amendment.
6. In the result, the revision has no merit and is dismissed, but in the circumstances there shall be no order as to costs.
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Orissa High Court
Naresh Chandra Das And Ors. vs Nirmal Chandra Das And Ors. on 28 March, 1989
Equivalent citations: AIR 1989 Ori 248
Bench: L Rath
1. Defendants 1 and 5 to 8 are the petitioners in this revision against an order allowing amendment of the plaint. The plaintiffs who claimed to be co-sharers of the joint family property brought the suit for partition with the averment that different co-sharers were in separate possession according to convenience but the property had not been partitioned by metes and bounds as well as for the relief of preparation of a scheme in respect of the ancestral property of the family deity. It is the case of the plaintiffs that the defendant 1, petitioner 1, is the son of Brundaban through his first wife whereas the plaintiffs Nos. 1 and 2 are his sons through his third wife. The present dispute is concerned with lot No. 1 of 'Ga' schedule property of the plaint in respect of which the plaint averments in para 11 were to the effect that the said property was purchased by Brundaban benami in the name of his first wife Prafulla Kumari and was all along possessed by him during his lifetime and after his death the plaintiffs 1 and 2 and defendant 1 had inherited the property and were in joint possession of the same. In the written statement filed by defendants 1 and 5, the averments in respect of the disputed property was that it had been purchased by their mother Prafulla Kumari out of her own Stridhan fund and was her exclusive Stridhan property. After the issues were settled in the case and the plaintiff 2 was examined as P.W. 1 and some other witnesses had also been examined for the plaintiffs, a petition for amendment of the plaint was filed seeking to amend para 11 of the plaint incorporating the pleading that lot No. 1 of schedule 'Ga' property of the plaint was purchased by the father of Brundaban, i.e. grandfather of plaintiffs 1 and 2 and defendant 1, and that during the Revision Settlement the said property had been recorded as plot Nos. 157, 158, 161, 162 and 163 bearing Khata No. 31 in his name but after him was mistakenly recorded in the settlement in the name of Prafulla Kumari, mother of defendant 1. Except this change, all other averments that Brundaban was possessing the property throughout and that after him the property was jointly possessed by the parties were left intact.
2. Mr. Sinha, the learned counsel appearing for the petitioners, has assailed the order allowing the amendment on three, counts, viz. (1) the amendment has been allowed without notice to all the defendants in the suit; (2) that the proposed amendment changes the nature and character of the suit; and (3) that the amendment does not satisfy the requirement of Order 7, Rule 3, C.P.C. so far as the first submission of lack of notice to all the defendants is concerned, it is his submission that defendants 1 to 15 are admittedly co-sharers of the property as stated in para-1 of the plaint and the other defendants are alienees and that para-11 of the plaint itself shows defendants 42 to 49 being the alienees in respect of lot No. 1 of 'Ga' schedule property and hence notice to all the other defendants was essential before the amendment was allowed. Admittedly, defendants 6, 7, 8, 28, 29, 37, 41 and 42 were set ex parte On 15-5-80 after filing of the written statement. Defendants 11, 12, 16, 17, 18, 19, 20, 21 and 49 were also set ex parte as no written statement was filed by them. Defendants 2 to 4, 9, 10 to 21, 23, 25, 26, 31, 33, 34, 37, 39, 40, 43, 44 and 46 to 48 did not appear in the suit and were also set ex parte. In support of the submission Mr. Sinha has placed reliance on (1975) 41 Cut LT 697 Manmohan Das v. Madhunagar Powerloom Weavers' Co-operative Society, where the law on the question was discussed by a Division Bench regarding the necessity of notice in the matter of amendment. It was held therein that the answer to the question whether notice is essential for acceptance of the amendment would depend upon the nature of the amendment. If the relief sought by way of amendment could be granted on the averments already made in the plaint, separate notice was not necessary on the principle that even without amendment the relief could be granted. Granting of such a relief lies within the general powers of the Court provided the same flows out of the facts already pleaded in the plaint. Where however the amendment introduces a new cause of action and asks for relief which could not have been granted on the original plaint, separate notice for the amendment is necessary.
3. The two requirements as stipulated in the decision being that a notice is necessary in the event the cause of action becomes different and where the relief could not be granted on the basis of the original plaint, it is to be seen as to whether on the basis of the principles laid down notice was necessary to have been issued to the defendants who had been set ex parte. There is no dispute that the contesting defendants had notice of the amendment and that the amendment was allowed after contest.
4. The cause of action for the suit has been stated in para-16 of the plaint as the refusal by the co-sharers of the claim of the plaintiffs for a mutual partition. Such cause of action is not purported to be charged by the amendment. The essential case of the plaintiffs is that they are the co-sharers in respect of the disputed property and are entitled to shares therein. Hence the cause of action for them to demand partition remains the same, namely, refusal to accede to their request for a partition. So far as the question whether the relief can be granted on the basis of the original averments is concerned, it is to be seen that there is no substantial difference so far as the rights of the plaintiffs vis-a-vis the property is concerned, since the effect of the averments both in the original plaint and the amendment is that they are claiming partition on the basis of their being co-sharers in the property of their father, either purchased by him Benami or inherited by him from his father. There is thus nothing in the averments which disentitles the plaintiffs to get the relief claimed since the basis of their right remained essentially the same, i.e., the plaintiffs being the successors-in-interest of their father and being members of the joint family. As such I would hold on the authority of the decision cited that no notice to the defendants already set ex parte was necessary and that no fault could be found with the order of the learned Subordinate Judge on that count.
5. Next is the question whether the proposed amendment changes the nature and character of the suit. As has been discussed in the foregoing para, the nature of the suit has essentially remained the same it being the claim of the plaintiffs for partition of the joint family properties and merely because the mode of acquisition of the property by the father is sought to be changed, the nature of the suit or the cause of action is in no way changed and hence this submission of Mr. Sinha must also accordingly fail. The last submission on the basis of Order 7, Rule 3, CP.C. is that even in the original plaint as regards lot No. 1 of schedule 'Ga' the plaintiffs did not give the boundary of the property and that in the proposed amendment also even though new plot numbers have been given, boundaries thereof have not been given. Order 7 Rule 3, C.P.C. requires that where the property involved in the suit is immovable, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. As the requirement of the rule itself shows, giving boundary of the land is not essential if the survey number or plot number which makes the plot identifiable is given and necessarily a suit cannot be dismissed merely because the boundary is not stated though the identifying plot number is given. The substance of para-11 of the plaint after the amendment if accepted would, in substance, be that lot No. 1 of the 'Ga' schedule property had been purchased and possessed by the father of Brundaban in his own right and the same had been recorded in his name in the Revision Settlement as plot Nos. 157, 158, 161, 162 and 163 under Khata No. 31 and after him the property got wrongly recorded in the name of Prafulla Kumari in the Settlement but in spite of such fact Brundaban was exclusively possessing the same in his own right and that plaintiffs 1 and 2 and the defendant 1 were possessing the property jointly along with the other properties after the death of their father as his heirs. The averments would show that the amendment relates to lot No. 1 of schedule 'Ga' property described in the plaint itself and in the Revision Settlement plot numbers are proposed to be given only by way of statement of a fact. In schedule 'Ga' the plot numbers, the Khata numbers and other details of the Current Settlement and the areas of the plots have been given, the total being Ac. 2.07 dec. Hence, the identifiable plot numbers having been given, there may not be any difficulty in identifying the plots. Even apart from that, if at all the plaint is defective because of proper identifying statements having not been made in respect of schedule 'Ga' originally, it is not a defect so far as the proposed amendment is concerned and hence cannot be a bar for allowing the amendment.
6. In the result, the revision has no merit and is dismissed, but in the circumstances there shall be no order as to costs.
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