Heard Sri Apurva Hajela, learned counsel for the petitioner and Sri Om Prkash, learned counsel for the respondent No.1. Respondents No.2 to 6 are proforma respondents.
By means of this writ petition, the petitioner defendant is challenging the order of the first appellate court by means of which the application of the respondent No.1 plaintiff for amendment of the plaint filed at the appellate stage has been allowed.
The petitioner and respondents are all legal heirs of late Sri Ram Sewak Geda and there is no dispute about this fact. After the death of late Ram Sewak Geda, the respondent No.1, i.e. his daughter filed a suit for partition in the year 2005 impleading other legal heirs including the mother Ram Pyari. It was stated in the plaint that the property in question is the self acquired property of late Sri Ram Sewak Geda. She claimed 1/7th share of the total property. After framing the issues, a preliminary decree was passed on 14.02.2008 to the effect that the property in dispute shall be divided in seven equal parts and a share of which shall be given to the petitioner. Being aggrieved, all the legal heirs, i.e. the petitioner Mohan Lal Geda, Smt. Ram Pyari and Hari Shankar Geda have filed an appeal, i.e. Civil Appeal No.35 of 2008. During pendency of the appeal, the mother i.e. Ram Pyari died on 03.01.2012. As the mother had 1/7th share in the property of late Ram Sewak Geda, therefore, consequent to her death, an amendment application was filed by the respondent No.1 plaintiff at the appellate stage seeking amendment in the prayer clause of the plaint of O.S. No.296 of 2005 claiming 1/6th share in the property. Objections were filed. The aforesaid application for amendment was allowed vide order dated 17.10.2010. It is against this order, the present writ petition has been filed.
The contention of Sri Apurva Hajela, learned counsel for the petitioner is firstly that the application for amendment was not supported by any affidavit and as in view of the amendment to the C.P.C. made in the year 2002, pleadings have to be supported by an affidavit, therefore, the amendment application was also required to be supported by an affidavit, therefore, the learned appellate court erred in allowing the same. In this regard, he placed reliance upon paragraph-4 of the judgment of the Supreme Court reported in Salem Advocate Bar Assocation vs Union Of India, 2005 (6) SCC 344 and the provisions of Order VI Rule 15(4) read with Section 26(2), C.P.C. Para-4 of the said judgment is quoted below:
"4. Prior to insertion of aforesaid provisions, there was no requirement of filing affidavit with the pleadings. These provisions now require the plaint to be accompanied by an affidavit as provided in Section 26(2) and the person verifying the pleadings to furnish an affidavit in support of the pleading [Order VI Rule 15(4)]. It was sought to be contended that the requirement of filing an affidavit is illegal and unnecessary in view of the existing requirement of verification of the pleadings. We are unable to agree. The affidavit required to be filed under amended Section 26(2) and Order VI Rule 15(4) of the Code has the effect of fixing additional responsibility on the deponent as to the truth of the facts stated in the pleadings. It is, however, made clear that such an affidavit would not be evidence for the purpose of the trial. Further, on amendment of the pleadings, a fresh affidavit shall have to be filed in consonance thereof."
The other contention of the learned counsel was that by means of the amendment, only the prayer clause had been amended whereas the valuation and court fee payable would also undergo a change but no such amendment was sought. The proposed amendment was based on a separate cause of action, i.e. the death of the mother-late Smt. Ram Pyari whereas the suit was filed for partition of the property belonging to the father, i.e. late Sri Ram Sewak Geda. A separate suit ought to have been filed on the basis of separate cause of action. The amendment virtually nullifies the preliminary decree, which is impermissible. Amendment at the appellate stage is not at all justified. He also referred to the provisions of Order II Rule 3 while submitting that joinder of separate cause of action is made only when defendants are the same. The amendment changed the nature of the suit. It was also contended that late Smt. Ram Pyari had executed a Will in favour of the petitioner defendant. First appellate court ignored this aspect of the matter and by allowing the amendment, he has virtually passed a preliminary decree of 1/6th share without adjudicating the relevant issues.
The learned counsel for the respondent No.1-plaintiff, on the other hand, submitted that variation of the preliminary decree and preparation of another preliminary decree amending the first decree was permissible in view of pronouncements of the Supreme Court in the case of Phoolchand Vs. Gopal Lal, AIR 1967 SC 1470. Learned counsel placed reliance upon paras-6 and 7 of the said judgment. It was submitted that once during pendency of the appeal arising out of the suit for partition, the mother, i.e. one of the defendants, died, who also had a share in the father's property, then the mother's share shall also be liable to be distributed amongst the legal heirs. So far as the submission of affidavit in support of the application for amendment is concerned, his submission is that the same was a procedural matter, and that even if there was no amendment application, the court was competent to vary the share on its own consequent to the death of the mother. Amendment does not change the nature of the suit. There is no necessity of filing a separate suit when one is already pending at the appellate stage. Amendment in the plaint at the first appellate stage was justified in the facts and circumstances of the case. The impugned order does not suffer from any error. The first appellate court after allowing the amendment has called for filing of a written statement and thereafter, the matter will proceed as per law.
In rejoinder, Sri Hajela appearing for the petitioner submitted that the facts and circumstances of Phool Chand's case (supra) are different from the present case. In that case, the preliminary decree were amended on the basis of a Will/ sale deed and there was no amendment in the plaint, as in this case. Learned counsel also invited the attention of the court to the observations made in paragraph-7 of the said judgment to submit that so far as the first decree was concerned, that was challenged in appeal before the first appellate court.
Admittedly, the suit was for partition of self acquired property of the father of late Sri Ram Seweak Geda. The mother late Smt. Ram Pyari was also a defendant. The preliminary decree was passed for 1/7th share of the legal heirs including Smt. Ram Pyari, which was challenged by some of the legal heirs before the first appellate court. During pendency of the matter at the first appellate stage, Smt. Ram Pyari died. As she had 1/7 share in the husband's property, therefore, obviously, consequent to her death, her share was also liable to be distributed amongst the legal heirs and the preliminary decree was liable to be amended. In view of this subsequent development at the appellate stage, the respondent No.1 plaintiff filed an application for amendment. It is not the case of the petitioner that the plaint could not be amended at the appellate stage. In fact, it is settled that it may be so amended specially in a partition suit. The appellate court has merely allowed the amendment application and has asked the concerned parties to file written statement. During the course of argument, Sri Hajela admitted that the written statement to the amended plaint had been filed by the petitioner and the matter was proceeding further. In this context, it is necessary to refer to the judgment in the case of Phoolchand (supra) relied upon by learned counsel for the respondent No.1, paragraphs 6 & 7 of which are quoted hereinbelow:
"6. The next contention is that there cannot be two preliminary decrees and therefore when the trial court varied the shares as indicated in the preliminary decree of August 1, 1942 there was no fresh preliminary decree passed by the trial court. It is not disputed that in a partition suit the court has jurisdiction to amend the shares suitably even if the preliminary decree has been passed if some member of the family to whom an allotment was made in the preliminary decree dies thereafter : (see Parshuram v. Hirabai"1'). So the trial court was justified in amending the shares on the deaths of Sohan Lal and Smt. Gulab Bai. The only question then is whether this amendment amounted to a fresh decree. The Allahabad High Court in Bharat Indo v. Yakub Hassan, (1913) I.L.R. 35 All. 159 the Oudh Chief Court in Kedemath v. Pattu Lal, ILR 20 Luck 557 : (AIR 1945 Oudh 120), and the Punjab High Court in Joti Parshad v. Ganeshi Lal, A.I.R. 1961 Puni. 120 seem to take the view that there can be only one preliminary decree and one final decree thereafter. The Madras, Bombay and Calcutta High Courts seem to take the view that there can be more than one preliminary decree : (see Kasi v. V. Ramanathan Chettiar, 1947-2 Mad. L.J. 523; Raja Peary Mohan v. Manohar, 27 Cal. W.N. 989 (AIR 1924 Cal 160), and Parshuram v. Hirabai, A.I.R. 1957 Bom. 59.
7. We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. In any case if two views are possible-and obviously this is so because the High Courts have differed on the question-we would prefer the view taken by the High Courts which hold that a second preliminary decree can be passed, particularly in partition suits where parties have died after the preliminary decree and shares specified in the preliminary decree have to be adjusted. We see no reason why in such a case if there is dispute, it should not be decided by the court which passed the preliminary decree, for it must not be forgotten that the suit is not over till the final decree is passed and the court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. Whether there can be more than one final decree does not arise in the present appeal and on that we express no opinion. We therefore hold that in the circumstances of this case it was open to the court to draw up a fresh preliminary decree as two of the parties had died after the preliminary decree and before the final decree was passed. Further as there was dispute between the surviving parties as to devolution of the shares of the parties who were dead and that dispute was decided by the trial court in the present case and thereafter the preliminary decree al- ready passed was amended, the decision amounted to a decree and was liable to appeal. We therefore agree with the view taken by the High Court that in such circumstances a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree. We should however like to make it clear that this can only be done so long as the final decree has not been passed. We therefore reject this contention of the appellant."
In view of the above, it is evident that consequent to the death of the mother, it was necessary to amend the plaint as the share of the respective legal heirs was bound to undergo a change. Consequently, the preliminary decree would also require an amendment, which could not be done without the plaint being amended and the matter proceeds thereafter in accordance with law and as the matter was pending at the appellate stage where the preliminary decree already passed was under challenge, it was appropriate that the plaint be allowed to be amended at that stage, so as to avoid unnecessary complications; delay or multiplicity of litigation. Therefore, I do not see any error in the action of the first appellate court in allowing the amendment application by means of the impugned order.
So far as the contention of the learned counsel for the petitioner that it amounts to nullifying the preliminary decree is concerned, it is trite that in a partition suit, the court has jurisdiction to amend the share even when preliminary decree has been passed, if, some member of the family, to whom an allotment was made in the preliminary decree, dies, thereafter, therefore, the contention that the amendment amounts to nullifying the preliminary decree is misconceived. The second preliminary decree amending the first one can be passed, but, for that purpose, issues pertaining to the shares of the legal heirs have to be adjudicated, for which an amendment in the plaint is necessary, followed by filing of written statement etc. I am unable to accept the contention of the petitioner that the amendment amounts to change in the nature of the suit. Said suit remains one for partition. What ultimately changes is only the respective share of the legal heirs. So far as the contention of the learned counsel for the petitioner regarding necessity of filing of an affidavit in support of the amendment application is concerned, I am of the view, that, it is not such an error, which can form a ground for dismissal of the application for amendment. It is at best an irregularity, which can always be cured by filing an affidavit subsequently, as it is a procedural matter. Obviously, the amended plaint has to be supported by an affidavit but it can be done subsequently. If it is not done, then of course, the same may not have the same value for the purposes of adjudication as a pleading supported by an affidavit, but, I am not inclined to quash the order only on this ground.
In view of the facts and reasons stated above, I do not find any error in the impugned order. It is however provided that the respondent No.1 shall file an affidavit, if she so chooses in support of the amended pleadings within one month, if not already done and if she does not do so, then the consequence will follow as per law.
The writ petition is dismissed.
Order Date :- 09.09.2014 NLY