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

Partition proceedings are vitiated even if single co-sharer is not made party or is not served in accordance with law

Cause Title :  Bhagwant Singh vs  Financial Commissioner (Appeals) Punjab, Chandigarh,  CWP-2132-2018 (O&M), High Court Of Punjab & Haryana At Chandigarh Date of Judgment/Order : 31.08.2022 Corum : Hon’ble Mr. Justice Sudhir Mittal Background A large parcel of land was owned by the Nagar Panchayat. Thereafter, some of the co-sharers sold their shares to third parties including the petitioners herein. On 22.11.1995, respondents No.3 to 5 filed an application for partition of the land. The petitioners were not impleaded as parties.  On completion of proceedings, sanad was issued on 28.08.1996. Vide two separate sale deeds dated 28.05.2008 respondents No.3 and 5 sold some portion in favour of respondent No.6 and 7. These respondents sought implementation of the sanad resulting in issuance of warrants of possession dated 05.06.2008. Allegedly, it was then that the petitioners realized that joint land had been partitioned and that proceedings h...
Post a Comment
Read more

Power of Attorney holder can also file cheque bounce cases: Supreme Court

The Supreme Court has held that a criminal complaint in a cheque bounce case can be filed and pursued by a person who holds a power of attorney (PoA) on behalf of the complainant. A three-judge bench headed by Chief Justice P Sathasivam gave the "authoritative" pronouncement on the issue, referred to it by a division bench in view of conflicting judgements of some high courts and the apex court. "We are of the view that the power of attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the Negotiable Instruments Act (which deals with cheque bounce cases)," the bench, also comprising justices Ranjana Prakash Desai and Ranjan Gogoi, said. The bench, in its judgement, said, "...we clarify the position and answer the questions in the following manner: "Filing of complaint petition under Section 138 of Negotiable Instruments Act through PoA holder is perfectly legal...
1 comment
Read more

Christian who reconverts as Hindu SC will get quota benefits

Amid the controversy over “ghar wapsi”, the Supreme Court on Thursday ruled that a person who “reconverts” from Christianity to Hinduism shall be entitled to reservation benefits if his forefathers belonged to a Scheduled Caste and the community accepts him after “reconversion”. Citing articles by B R Ambedkar and James Massey, and reports by Mandal Commission and Chinappa Commission, the court said: “There has been detailed study to indicate the Scheduled Caste persons belonging to Hindu religion, who had embraced Christianity with some kind of hope or aspiration, have remained socially, educationally and economically backward.” The bench of Justices Dipak Misra and V Gopala Gowda held that a person shall not be deprived of reservation benefits if he decides to “reconvert” to Hinduism and adopts the caste that his forefathers originally belonged to just because he was born to Christian parents or has a Christian spouse. Expanding the scope of a previous Constitution benc...
1 comment
Read more