IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.371 of 2009 Date of decision: 28.2.2011 Dev Raj …. Petitioner Versus Surinder Singh & ors. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No For the petitioner: Mr.Ajay Sharma, Advocate. For the respondents: Mr.M.L.Brakta, Advocate. _____________________________________________ Deepak Gupta, J.(Oral) 1. By means of this petition, the petitioner has challenged the order dated 7.4.2009 whereby the learned Trial Court dismissed the application filed by the petitioner (hereinafter referred to as the ‘plaintiff’) for amendment of the plaint. 2. Briefly stated the facts of the case are that the plaintiff and the defendants No.2 and 3 are the sons of late Sh.Lachhman Singh. Smt.Sundri Devi was their mother. Originally the plaintiff, Dev Raj filed a suit before the learned Trial Court alleging that the suit property belonged to their mother Smt.Sundri Devi and she, in her life time, had executed a Will on 13.6.2001 in favour of the plaintiff and the defendants No. 2 and 3 giving the suit property to them in equal shares. However, after the death of their mother when they wanted to get the mutation attested in terms of the Will, the revenue authorities refused to attest the mutation and in fact, mutated the suit property in favour of defendant No.1 who is the son of defendant No.2 on the basis of a later Will dated 9.3.2005 executed by Smt.Sundri Devi. The second Will was challenged in the suit and challenge was also laid to the orders passed by the revenue authorities. 3. The case was fixed for evidence of the plaintiff and adjourned from time to time and last opportunity to the plaintiff to lead evidence was given. Instead of producing evidence, the plaintiff-petitioner filed an application for amendment of the plaint. 4. The relevant portion of the application for amendment reads as follows:- “That late Lachhman Singh father of applicant/plaintiff, defendants No.2 and 3 during his life time had executed valid Will of his estate vide Will dated 25.7.1985 and this fact could not be mentioned in the plaint at the time of filing of suit inadvertently due to bona fide mistake and this fact has come to the notice recently after bare perusal of case file and hence the applicant/plaintiff wants to add additional prayer of declaration in the headnote of plaint.” 5. The learned Trial Court rejected this prayer for amendment of the plaint mainly on the ground that the plaintiff had failed to allege or show that he had acted with ‘due diligence’. 6. I have heard Sh.Ajay Sharma, learned counsel for the petitioner and Sh.M.L.Brakta, learned counsel for the respondents. 7. A bare perusal of the original plaint shows that the case originally set up was that Smt.Sundri Devi herself was the owner of the suit property and she had willed the land in favour of the plaintiff and defendants No.2 and 3 in equal shares. Now the plaintiff wants to amend the pleadings and actually what he wants to say is that late Sh.Lachhman Singh, father of the parties had willed the land in favour of the plaintiff and defendants No.2 and 3. Meaning thereby that Smt.Sundri Devi never became owner of the land. This in my view is a totally inconsistent plea to what was originally taken in the original plaint. It is true that alternative pleas can be taken and a defendant may be permitted even to take inconsistent pleas but a plaintiff can never be permitted to take two totally inconsistent pleas. The plea of the plaintiff in the original suit was that he had become owner of the suit property by virtue of a Will executed by his mother is totally inconsistent with the plea now sought to be taken that his mother Smt.Sundri Devi was not the owner of the property. 8. Furthermore, as held by the learned Trial Court, other than making very vague assertion that the plaintiff by inadvertence or bona fide mistake could not take this plea in the original plaint, no other explanation has been given. The second part of the explanation that the Will executed by late Sh.Lachhman has come to the notice of the plaintiff recently also does not appear to be correct since the plaintiff has not stated in his application as to from where and how he came to know about the same. 5. In view of the above discussion, I find no merit in the petition which is accordingly rejected. No order as to costs. February 28, 2011 ( Deepak Gupta ) (m) Judge