Full Judgment Text
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PETITIONER:
MANOJ BEHARI LAL MATHUR & ANR.
Vs.
RESPONDENT:
DR. SHANTI MATHUR & ORS.
DATE OF JUDGMENT: 02/12/1996
BENCH:
K. RAMASWAMY, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
We have heard learned counsel on both sides.
This appeal by special leave arises from the order of
the single Judge of the High Court of Rajasthan at Jaipur,
made on October 16, 1995 in CR No.27/95.
The admitted facts are that the appellants’ mother had
initially filed suit No.316/88 for perpetual injunction
restraining Dr. Shanti Mathur and others from alienating the
property bearing No.D-34, Subhash Marg, C-Scheme, Jaipur.
Subsequently, the appellants also filed suit on 1.12.1988
for partition and separate possession of 1/4 and 3/4 shares
respectively. Thereafter, the present Suit No.30/90 was
filed for declaration that Dr. Shanti Mathur was a benamidar
and the property belonged to the joint family and,
therefore, she has no right, title and interest in the
Plaint Schedule Property. An application was filed in the
trial Court for trial of issue No.7 as a preliminary issue.
Ultimately, the matter had come to this Court wherein this
Court directed to try the issues, regardless of the
deficiency in the pleadings, whether Dr. Shanti Mathur is a
benamidar and whether the provisions of Benami Transactions
(Prohibition) Act, 1988 would stand in the way of the
appellants. Subsequently, an application under Order 6, Rule
17 read with Section 151 CPC came to be filed for amendment
of the plaint on the ground that Dr. Shanti Mathur was a
trustee on behalf of the appellants’ plaintiffs. The trial
Court as well as the High Court in the impugned order
dismissed the application. Thus, this appeal by special
leave.
It is contended by Mr. Tapas Ray, learned senior
counsel appearing for the appellants, that Dr. Shanti Mathur
stands in a fiduciary capacity as a trustee on behalf of the
appellants-plaintiffs and the members of the joint family.
The circumstances in which the property came to be purchased
in the name of Dr. Shanti Mathur have elaborately been
stated in the plaint filed in all the three suits though
different reliefs have been sought in the suits. In the
first suit, the relief prayed for was perpetual injunction
and it was sought that Dr. Shanti Mathur was attempting to
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alienate the property. Subsequently, when it was found to
have been alienated, suit was filed for partition. When
title to the property was set up independently on behalf of
Dr. Shanti Mathur, third suit came to be filed for
declaration. Under these circumstances, the amendment sought
for does not change the nature of the suit or cause of
action; nor is any different cause of action introduce. Even
inconsistent pleading can be raised by the plaintiffs at any
stage and it is the discretion of the court to see whether
in the facts and circumstances of the case, the amendment to
the plaint is necessary. In this case, instead of leaving
the ambiguity for future arguments, an express pleading is
sought to be brought on record by amending the plaint and by
pleading that Dr. Shanti Mathur is a Benamidar; in fact she
is a trustee holding the property on behalf of the joint
family and, therefore, the trial Court as well as the High
Court would have granted amendment to the plaint.
On the other hand, Shri Harish Salve, learned senior
counsel appearing for the respondent, contended that in view
of the specific directions given by this Court on an earlier
occasion for disposal of issue No.7 as a preliminary issue,
regardless of the deficiency in the pleadings, the Court is
left with no option but to proceed with the consideration of
preliminary issue. At this stage finding it difficult to get
along with the matter, the appellants with a view to delay
the proceedings has come forward with pleadings at three
different stages with different and inconsistent reliefs.
Thus, it would indicate that the appellants have no
consistent case. In this behalf, the amendment, if allowed,
would alter the nature of the suit and character of the
suit. Therefore, it would not be expedient to allow the
amendment. The High Court as well as the trial Court rightly
refused to grant the amendment. In view of the diverse
contentions, the question that arises for consideration is;
whether the High Court is right in refusing to permit the
appellants to amend the plaint? It is seen that the
appellants have come forward with the plea that Dr. Shanti
Mathur is only a Benamidar for and on Behalf of the joint
family. If that be so, even the decision on which the
learned counsel has placed reliance, namely, Controller of
Estate Duty, Lucknow vs. Aloke Mitra [(1981) 2 SCC 121] does
not help him. It is always open to the appellants, even
without resorting to amendment of the plaint, to press their
arguments basing on the legal effect of the benami
transaction and that Dr. Shanti Mathur is a trustee of the
property for the benefit of the joint family. For that
purpose, no express amendment is required, nor it is
necessary that amendment be made in the plaint. Under these
circumstances, without expressing any opinion on the
amendment of the issues, it is open to the court below to
proceed with the trial of the suit or to dispose of the
preliminary issue No.7 in according with law.
The appeal is accordingly dismissed. No costs.