Skip to main content

Allowing whether a pleading should amended should not depend upon the eventual fate of the suit

The Supreme Court in RAJ KUMAR BHATIA vs SUBHASH CHANDER BHATIA has held that it was not necessary to examine the merits of the averments while considering application for amendment of pleadings. The court stated  that whether an amendment should be allowed is not dependent on whether the case, which is proposed to be set up, will eventually succeed at the trial.

A bench comprising Chief Justice Dipak Misra, Justice AM Khanwilkar, Justice DY Chandrachud was deciding an appeal filed against the judgment of the high court that set aside the order of the trial court allowing amendment of the written statement. The issue arose out of a suit for recovery of possession. The parties were family members and the plaintiff sought possession on the strength of a gift deed executed by his mother. The defendant, a sibling of the plaintiff, filed a written statement stating that the property was an undivided joint family property, and they were in joint possession of the same even after the execution of the deed. The original written statement filed in 2003 was sought to be amended in 2016 incorporating additional averments to the effect that the property was an undivided family property.

The trial court allowed the amendment application. The plaintiff challenged the amendment before the high court invoking Article 227 of the Constitution of India. The high court viewed the amendment made in 2016, 13 years after the filing of the original written statement, with suspicion. The high court held that it is a settled principle that after the enactment of the Hindu Succession Act 1956, property which devolves on an individual from a paternal ancestor does not become HUF property but the inheritance is in the nature of self-acquired property unless an HUF exists at the time of the devolution. In the view of the high court, the averments sought to be introduced by the appellant do not lead to a conclusion of the existence of coparcenary property. The high court, therefore, held that the amendment was untenable on merits, and set aside the order of trial court.

On comparing the averments in the original written statement, and the amended written statement, the Supreme Court noted that the defendant was not attempting to set up a new case by amendment, and that the newly introduced averments were mere elaboration of the existing defense. The Supreme Court also observed that the high court had in the exercise of its jurisdiction under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the appellant in the amendment and that the same was impermissible. It was also observed that the high court had exceeded its supervisory jurisdiction under Article 227 of the Constitution of India, by entering into merit evaluation of the matter.

Comments

Post a Comment

Most viewed this month

The recovery of vehicles by the financier not an offence - SC

Special Leave Petition (Crl.) No. 8907  of 2009 Anup Sarmah (Petitioner) Vs Bhola Nath Sharma & Ors.(Respondents) The petitioner submitted that  respondents-financer had forcibly taken away the vehicle financed by them and  illegally deprived the petitioner from its lawful possession  and  thus,  committed  a crime. The complaint filed by the petitioner had been  entertained  by  the Judicial Magistrate (Ist Class), Gauhati (Assam) in Complaint Case  No.  608 of 2009, even directing the interim custody of the vehicle (Maruti  Zen)  be given to the petitioner vide order dated  17.3.2009.  The respondent on approaching the Guwahati High  Court against this order, the hon'ble court squashed the criminal  proceedings  pending   before  the  learned Magistrate. After hearing both sides, the Hon'ble Supreme Court decided on 30th...
7 comments
Read more

Abusing in-laws a ground for divorce: SC

Abusing in-laws and not allowing them to reside in the matrimonial home by a woman amounts to cruelty to her spouse, ground enough for grant of divorce, the Supreme Court has ruled while allowing an NRI's plea for legal separation from his wife. A bench of Justices Vikaramajit Sen and A M Sapre said such incidents could not be termed as "wear and tear" of family life as held by Madras High Court which had said that a couple must be prepared to face such situations in matrimonial relationship. The NRI had filed a divorce petition alleging that his wife was abusive to his family members and did not allow his parents and siblings to stay in his house when they visited the US. Referring to an incident, the husband told the court that his wife had once locked him and his sister out of the house and abused them saying they belonged to a 'prostitute family'. She refused to allow her sister-in-law to enter the house and even lodged a police complaint against her hu...
4 comments
Read more

Difference Between Sale Of 'Corporate Debtor As A Going Concern' And Sale Of 'Business Of The Corporate Debtor As A Going Concern'

Citation : M.S. Viswanathan, Liquidator of Gemini Communication Limited vs Pixtronic Global Technologies Pvt. Ltd,  IA/1215/CHE/2021 in CP/699/IB/2017 Date of Judgment/Order : 15/2/22 Court/Tribunal : National Company Law Tribunal, Division Bench I, Chennai Corum : R. Sucharitha, Member (Judicial), Sameer Kakar, Member (Technical) Background Application was filed by the Liquidator under Regulation 32(e) of the IBBI (Liquidation Process) Regulations, 2016 seeking approval from the Tribunal for sale of the Corporate Debtor as a going concern. Order Allowing the application, the NCLT went into an elaborate but useful explanation of the entire law behind the term 'Going Concern'. NCLT observed that  the term 'going concern' means all such assets and the liabilities, which constitute an integral business or the Corporate Debtor, that must be transferred together, and the consideration must be for the business or the Corporate Debtor. The buyer of the assets and liabilitie...
Post a Comment
Read more