Does ammendments change the case
Rhea
(Querist) 12 November 2011
This query is : Resolved
My grandfather had 3 daughters and 2 sons, he died in May 2011.
A suit was filed by 3 sisters against 2 sons on a property(a residential house in which the 2 sons are staying) saying the father died inestate,while we had found 2 xerox copies of the will and they were not ready to accept it as the 3 daughters got no share in the property.
After that they said that they found the original Will in the eldest daughter's house,and gave a written statement that she has the will .
Later they filed an Ammendment to the court saying they found a Will written in 2002, But they will not accept it since they also got to know through their father's friends that their father had written another will in 2008/2009 to which they were witnesses(But the friends donot know about its contents)and that will must be in the house and in custody of elder son.
My question is will an Ammendment which is totally contradicting to the actual case filed by plaints hold good. Will the judge understand that the plaints are faking. What would be the decision of court will it still divide the property among its 5 hiers.
ajay sethi
(Expert) 12 November 2011
1)order 6 rule 17 deals with amendment of plaint
2) court is conferred with power, at any stage of the proceedings, to allow alteration and amendments of the pleadings if it is of the view that such amendments may be necessary for determining the real question in controversy between the parties
3)well-settled by various decisions of this Court as well as those by High Courts that the courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bonafide one
4)The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint
the suit filed by plaintiff contended that grandfather diesd intestate . subseqent to filing of suit plaintiff find a will and desire to amend the plaint to place on record the will . the prayer if allowed would change the nature and character of the suit . hence in my view if it changes nature and character of suit amendment will not be allowed . however supreme court has held that AIR
1995 SC 1498, Akshay Restaurant v. Panjanappa and Others the matter pertained to
amendment of plaint and the application for amendment was allowed though different
stands were taken by the plaintiff.'`
ajay sethi
(Expert) 12 November 2011
1)The Apex Court in G. Nagamma v. Siromanamma,
(1996) 2 SCC 25, at page 26 had held that it is settled law that the plaintiff is entitled to
plead even inconsistent pleas. In this case, the plaintiff were seeking alternative reliefs.
The application for amendment of the plaint whereby neither cause of action could
change nor the relief could be materially affected, was allowed.
2) In another case, AIR
1995 SC 1498, Akshay Restaurant v. Panjanappa and Others the matter pertained to
amendment of plaint and the application for amendment was allowed though different
stands were taken by the plaintiff.'`
ajay sethi
(Expert) 12 November 2011
It is trite that the court will not go into the correctness and falisity of the
amendment while deciding upon whether the amendment should be allowed or not. The
merits of amendment sought to be incorporated by way of amendment are not to be
adjudged at the stage of allowing prayer for amendment. (Rajesh Kumar Aggarwal and
Ors. Vs. K.K. Modi (2006) 4 SCC 385 and Lakha Ram Sharma v. Balar Marketing Pvt.
Ltd., 2006 (2) SCALE 363].
15. In view of the above discussion, I hold that inclusion of the plea of piercing of the
Rhea
(Querist) 12 November 2011
Thanks for a detailed reply Mr.Sethi.It helped me understand the importance of an ammendment.
One more thing that I want to know is , Now that there is a Will found (2002), will the court consider this as the final Will or will the case prolong because there is a mention of another Will written in 2008/2009 whose contents are unknown but witnesses are present.
