IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 239 of 2010 Reserved on: 8.12.2010 Date of decision: 15.12.2010. Malti Devi and others . …Petitioners. Versus Gopi Chand and others …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioners: Mr. C.P.Sood, Advocate. For the respondents: Ms. Seema Guleria, Advocate. No. 1 to 6. Deepak Gupta, J. 1. This petition is directed against the order dated 25.8.2010 passed by the learned Civil Judge (Jr. Division), Court No.3, Shimla whereby plaintiffs have been permitted to amend the plaint. 2. Briefly stated the facts of the case are that the respondents 1 to 5 (here-in-after referred to as the plaintiffs) filed a suit against Shri Meghu Ram, predecessor-in-interest of the present petitioners and Smt. Shakuntla and Rekha Devi. It was claimed that Jiwanoo Ram, predecessor-in-interest of the plaintiffs was in possession of the suit land measuring 1 bigha situate in Vikasnagar, Tehsil and District Shimla. According to the plaintiffs, 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 Jiwanoo Ram died on 29.5.1985 but somehow mutation of inheritance was not entered in the name of the plaintiffs and now the plaintiffs had come to know that the same had been entered in the name of the defendants. According to the plaintiffs, the defendants are heirs of Anokhia Ram S/o late Shri Tulku. It was further alleged that Shri Tulku and Shri Molku, who was the father of Jiwanoo Ram, were real brothers and in a family settlement entire land was mutually partitioned and the suit land measuring 1 bigha fell to the share of Jiwanoo Ram. 3. Written statement-cum-counter claim was filed by the defendants. According to the defendants, the plaintiffs had not stated correct facts and the suit land was initially owned by S/Sh. Hari Nand, Udhi Ram, Shiv Saran, Kesar Singh, Ram Kishan and Niranjan Singh. It was further alleged that half of this entire land was in possession of Shri Shedia S/o Sh. Thapi and the remaining half of the land was in possession of Shri Anokhia and Meghu Ram, i.e. predecessors- in-interest of original defendants No. 1 and 2 and original defendant No.3. It was further alleged that proprietary rights in respect of this suit land and 3 other land under tenancy were conferred upon Shri Shedia (half share) and Shri Anokhia and Meghu Ram (half share) in the year 1959 and on 20.3.1963 mutation was also sanctioned in their favour. It was contended that Jiwanoo Ram was never in possession of this land and any entry in the revenue record showing Jiwanoo Ram in possession of the suit land was wrong and illegal. The defendants also filed a counter claim and prayed that the revenue entries showing Jiwanoo Ram to be in possession of the suit land be declared to be illegal and the plaintiffs be restrained from interfering in the possession of the defendants over the suit land. 4. Written statement to the counter claim was filed by the plaintiffs and here the plaintiffs took up a new plea. A pedigree table was set up in which it was alleged that one Lira had three sons, namely, Bhalku, Thapi and Tulku. It was further alleged that Bhalku had one son Jiwanoo, predecessor-in-interest of the plaintiffs. Thapi had one son Shedia, who died issueless and Tulku had two sons Anokhia, predecessor-in-interest of defendants No. 1 and 2 and Meghu Ram defendant No.3, predecessor-in-interest of the 4 present petitioners. The plaintiffs denied that any order had been passed by the Compensation Officer in favour of the defendants. After filing written statement the plaintiffs also sought to correct the plaint in a similar manner. The learned trial Court allowed the amendment and hence this petition. 5. The main contention raised on behalf of the petitioners is that by means of this amendment the very nature of the suit has been changed and such amendment takes away the admission made by the plaintiffs and cannot be allowed. 6. At the outset, I may note that this amendment was sought immediately after filing of the written statement to the counter claim and parties have still to lead the evidence. There is no manner of doubt in my mind that the plaintiffs have in fact made substantial changes in the plaint and now what they are pleading is totally different from what they had pleaded earlier. Whereas in the original un-amended plaint, they had only made mention of two brothers Tulku and Molku now the third brother Shedia has also been brought in. In fact, Shri Chander Paul, learned counsel for the petitioners submits that the averments made by 5 the plaintiffs that Shedia died issueless is wrong. This is a matter, which is to be decided at the stage of evidence. Though the plaintiffs have made substantial changes from the original plaint but at the same time it cannot be said that these changes are of such a nature that they have taken inconsistent pleas. They still claim ownership and possession of the suit land by way of family arrangement and then by inheritance. Therefore, this amendment could have been allowed. However, the observations of the learned trial Court that the amendments sought to be made only explanatory of the earlier facts are totally incorrect. As observed above, the plaint has been virtually re-written and cannot be said to be explanatory. In fact, some of the pleas now taken in this regard are not in accordance with the pleas earlier taken but the fact is that these pleas are not mutually destructive to each other. Therefore, the petition is dismissed. It is, however, made clear that the observations of the learned trial Court that the amendments are explanatory and clarificatory are not correct. 6 7. In view of the above discussion, I find no merit in the petition, which is accordingly rejected. No order as to costs. 15th December, 2010 (Deepak Gupta) ™ Judge