NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   6685 OF 2001

MAHAVIR PRASAD AND ANR. …..APPELLANT(S)

Vs.

RATAN LAL AND ANR. ….RESPONDENT(S)

J U D G M E N T  

HARJIT SINGH BEDI, J.

1. This appeal is directed against the judgment of the Single  

Bench of the Rajasthan High Court dated 13th December 2000  

whereby the order of the Civil  Judge, Senior Division, Sikar  

dated  24th October  2000  dismissing  the  application  under  

Order 6 Rule 17 of the CPC seeking to amend the plaint, has  

been reversed.  The facts are as under:

2. On  10th October  1974,  one  Bhanwarlal  son  of  Gulab  

Chand,  the  brother  of  the  respondent  herein  Ratan  Lal,  

created a trust styled as Shri Gulabchand Bhanwarlal Sethi  

Smriti  Nidhi  Pranyas  Trust.   The  trust  deed  was  duly

registered with the Sub-Registrar, Sikar on the same day. On  

27th January  1976,  Ratan Lal  filed  a  suit  for  partition  and  

declaration against the trustees with respect to the property  

which formed a  part  of  the  trust.   The  Civil  Judge,  Senior  

Division framed the requisite issues on 19th August 1977 and  

after trial a preliminary decree was passed on 25th May 1979  

holding  that  Ratan  Lal  was  entitled  to  a  half  share  in  the  

property and was therefore entitled to a partition by separate  

possession by metes and bounds.  No appeal was preferred  

against this decree by either party.  Four of the six trustees  

thereafter passed away and the remaining two trustees, the  

appellants herein, moved an application on 27th March 1999  

for the passing of  the final  decree.  Ratan Lal  at  this stage  

moved an application dated 28th August 2000 under Order 6  

Rule  17  for  amendment  of  the  plaint  now  claiming  the  

ownership  of  the  entire  trust  property,  inter  alia,  on  the  

ground that the property was a joint family property consisting  

of  himself  and  his  brother,  the  deceased  defendant  no.1  

Bhanwarlal, and alleging that Bhanwarlal had not created the  

trust as he had abandoned the idea of doing so and he (Ratan  

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Lal) as sole heir, was thus, entitled to a decree for the entire  

property.  The  appellant  filed  a  reply  dated  13th September  

2000 to the said application taking several pleas.  As already  

mentioned above, the amendment application was dismissed  

by the Civil Judge vide order dated 24th October 2000 and the  

said  order  has  been  set  aside  by  the  High  Court  vide  the  

impugned order dated 13th December 2000 and a direction has  

been issued  that  the  amendment  should  be  allowed  in  the  

preliminary  decree  so  that  the  matter  may  be  finally  

determined when the final decree is prepared.  It is against  

this order that the present appeal has been filed.   

3. Mr.  Mridul,  the learned counsel  for  the  appellant,  has  

argued  that  the  order  of  the  High  Court  was  based  on  a  

misconception as the prayer in the application under Order 6  

Rule 17 was for an amendment to the plaint and not for an  

amendment to the preliminary decree and as such the very  

basis of the order was erroneous as to the relief claimed.  He  

has also pleaded that the application filed about 20 years after  

the  preliminary  decree had been passed was highly  belated  

and ought to have been dismissed on that very short ground.  

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He has  finally  submitted  that  the  finding  of  the  trial  court  

which had not been reversed by the High Court, was that a  

new case was sought to be put up by the amendment which  

was not permissible under law.   

4. Mr.  Jain,  the  learned  counsel  appearing  for  the  

respondent has at the very outset pointed out that the order of  

the High Court in so far as it had allowed the amendment of  

the preliminary decree was erroneous as by the  application  

under Order 6 Rule 17 an amendment in the plaint had been  

prayed for in the background of the fact that Bhanwarlal had  

abandoned the idea of creating the trust and in that view of  

the matter the respondent being his sole heir was entitled to  

succeed to the entire property.  He had also submitted that as  

the plaint, as originally laid, had claimed reliefs in accordance  

with  the  proposed  amendment  the  mere  fact  that  some  

additional facts in support of those prayers were now being  

brought on record would not amount to a change in the nature  

of the suit and that in any case if the amendment was to be  

disallowed the respondent would have to go in for another suit  

which would lead to multiplicity of proceedings.   

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5. We  have  considered  the  arguments  advanced  by  the  

learned  counsel  for  the  parties.   In  view  of  Mr.  Jain’s  

statement that it was the amendment of the plaint and not the  

amendment of  the preliminary decree that had been prayed  

for, the very basis of the High Court’s order disappears and  

the order of  the trial  court  dismissing the application must  

ipso facto be restored.   We have, however, chosen to go into  

other  aspects  of  the  matter.   Concededly,  the  preliminary  

decree had been passed on 25th May 1979 and this decree had  

attained finality.   It  is  also significant  that  Bhanwarlal,  the  

creator of the trust, who is said to have later abandoned the  

idea of creating the trust was the event which had led Ratan  

Lal to claim the entire suit property had died on 18th November  

1982 whereas the application for amendment had been filed  

on 28th August 2000.  We are, therefore, of the opinion that  

the  application  is  highly  belated  both  from the  date  of  the  

preliminary decree which is 25th May 1979 and from the date  

of death of Bhanwarlal which is 8th November 1982 and for  

these additional reasons the application must be rejected.   

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6. The learned counsel for the appellant has also submitted  

that by the proposed amendment the very nature of the suit  

was sought to be changed.  Mr. Jain, for the respondent has  

however expressed his apprehension that in case some finding  

was recorded on this issue, it might prejudice his client’s case  

at some later stage.  In the background and in the above facts  

and without expressing any opinion on this matter either way,  

we leave this question untouched.  The order of the High Court  

dated 13th December  2000 is  accordingly  set  aside  and the  

order of the Civil Judge restored.  Ipso facto, the application  

for amendment dated 28th August 2000 is dismissed.  There  

will be no order as to costs.   

……………………………J. (DALVEER BHANDARI)

.…………………………J. (HARJIT SINGH BEDI)

New Delhi, Dated:  May 14, 2009

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