02 December 1996
Supreme Court
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MANOJ BEHARI LAL MATHUR Vs SHANTI MATHUR

Bench: K. RAMASWAMY,G.T. NANAVATI
Case number: C.A. No.-015351-015351 / 1996
Diary number: 17993 / 1995
Advocates: Vs SUSHIL KUMAR JAIN


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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.