Manoj Behari Lal Mathur & Anr Vs. Dr. Shanti
Mathur & Ors  INSC 1544 (2 December 1996)
K. Ramaswamy, G.T. Nanavati
O R D E R
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 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
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.
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