In the original plaint, the plaintiff claims that he is owner in possession of one half of the property left behind by his uncle, deceased Salam Bhat, whereas other half is owned and possessed by the defendants who also happen to be the successors-in-interest of other cousin brother of Salam Bhat. In the original plaint, it is claimed by the plaintiff that the deed of adoption in favour of defendant No.1 is null and void and, as such, the property of deceased Salam Bhat has to devolve upon his heirs as per Muslim Personal Law. However, by way of proposed amendment, the plaintiff claims that in the absence of deed of adoption, he would be the lone legal heir entitled to ownership and possession of the property left behind of deceased Salam Bhat, which is clearly in contradiction to his claim made in the original plaint.
15) Apart from the above, in the original plaint, the plaintiff claims a decree of partition in respect of the suit property against the defendants whereas by way of proposed amendment, he has sought substitution of relief of partition by a decree of possession of whole of the property left behind by deceased Salam Bhat. Thus, the plaintiff seeks to change the very nature of the suit. Even the cause of action is sought to be changed by the plaintiff by amending the para of the plaint which relates to the cause of action. In the original suit, the plaintiff has claimed that he had sought partition of the property from defendant No.1 and when he refused, he filed the suit but by way of proposed amendment, the plaintiff has pleaded that he had sought possession of the property from defendant No.1 which he refused.
16) 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 approach has to be adopted while considering an application for amendment of the pleadings in order to avoid multiplicity of litigation but it does not mean that the plaintiff should be permitted to set up a total new cause of action or incorporate new pleas which are inconsistent with the pleadings of the original plaint.
17) The amendment sought by the plaintiff by way of application which he had filed before the learned trial court, if allowed would have amounted to not only the change of cause of action but also to change of nature of the suit. Therefore, the same did not deserve to be allowed and the learned trial court has rightly rejected the same. The impugned order passed by the learned trial court, therefore, does not call for any interference by this Court. The petition lacks merit and is dismissed accordingly.
OWP No.1353/2011Read full Judgment here: Click here
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