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Amir Chand Vs. Lakhmi Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1920All87; 58Ind.Cas.275
AppellantAmir Chand
RespondentLakhmi Chand and ors.
Excerpt:
.....to supply omissions--duty of court--amendment of plaint, application for, made at late stage, whether should be allowed--civil procedure code (act v of 1908), order vi, rule 17. - - the suit has been dismissed on the technical ground that the plaintiff failed to include in his claim certain items of joint family property. as soon as the application was made by the plaintiff, all defeats in the case had disappeared and we fail to see why the learned subordinate judge thought fit to dismiss the suit on an admittedly technical ground, namely, that the plaintiff did not include the whole of the joint family property......to have been excluded is of comparatively small value. separate written statements were filed by lala gopal das, the plaintiff's father, and by defendants nos. 1 and 2, and by defendants nos. 4, 5 and 6. in the written statement filed by defendants nos. 1 and 2 and that filed by defendants nos. 4, 5 and 6 no such plea which seems to have found favour with the court below was raised. the plaintiff's father, lala gopal das, however, pleaded that during the lifetime of baldeo das, the common ancestor, the ornaments and other moveable properties had already been divided; and he went on to add in a separate paragraph that certain ornaments and a shop which were in the plaintiff's possession had not been disclosed by him. as the written statement is worded, strictly speaking, there is no.....
Judgment:

1. This is an appeal by the plaintiff arising oat of a suit for partition of joint family prop arty. The suit has been dismissed on the technical ground that the plaintiff failed to include in his claim certain items of joint family property. The other points raised in the suit have not been decided by the learned Subordinate Judge, The plaintiff has come up in appeal, It is a great pity that although the parties had adduced all the evidence which they wanted to produce before the Court, the learned Subordinate Judge, instead of taking the trouble to decide the real paints in controversy between the parties, has tried to find a short ant for the disposal of the suit. The suit was not one for partition of only a part of family property but it was professedly a suit for partition of the whole family property, and in paragraph 9 of the plaint it was stated that several times the plaintiff had asked the defendants to divide the whole property of the joint family, but they put the matter off from day to day on various pretexts. It appears that the value of the joint family property is about two lakha of rupees, whereas the property said to have been excluded is of comparatively small value. Separate written statements were filed by Lala Gopal Das, the plaintiff's father, and by defendants Nos. 1 and 2, and by defendants Nos. 4, 5 and 6. In the written statement filed by defendants Nos. 1 and 2 and that filed by defendants Nos. 4, 5 and 6 no such plea which seems to have found favour with the Court below was raised. The plaintiff's father, Lala Gopal Das, however, pleaded that during the lifetime of Baldeo Das, the common ancestor, the ornaments and other moveable properties had already been divided; and he went on to add in a separate paragraph that certain ornaments and a shop which were in the plaintiff's possession had not been disclosed by him. As the written statement is worded, strictly speaking, there is no plea raised, even by Lala Gopal Das, that there are some items of joint family property which had been excluded from the list of the properties sought to be partitioned. The plaintiff went into the witness-box and he stated that the ornaments referred to in that written statement belonged to his wife and were not joint family property, and he also stated on oath that the stock-in-trade of the tailoring shop was his own property and did not belong to the family. No evidence was adduced to contradict the statement of the plaintiff. The plaintiff's father went into the witness-box, and in his statement also it does not appear that his case was that any part of the joint family property had been excluded from the list of the properties sought to be partitioned. In our opinion in a suit for partition of the whole family property the plaintiff is not bound to file with the plaint such a complete and exhaustive list of all the properties as not to exclude any items howsoever small. If any defendant wishes to raise the plea that any part of the joint family property has been excluded, it is for him to specify such properties and show that they belong to the family and have been wrongly excluded. Before the suit was disposed of, the plaintiff, on the 7th of May 1917, put in an application before the Court to the effect that he was willing that the ornaments and the shop referred to in the written statement of Lala Gopal Das should be included in the claim. This application was ordered to be filed by the Court. In our opinion, in view of the offer made by the plaintiff to include the properties which, it had been suggested, also formed part of the joint family property, the suit should not have been dismissed on the technical ground that, when it was originally brought, these items had not been included in the plaint. The only inference that under the circumstances we can draw is that the Court below shirked its duty and tried to get rid of the case in as short a way as possible. The result of the dismissal would be that the plaintiff will have to bring a second suit for partition and the parties will be put to further embarrassment and trouble. It is the duty of the Court to see that justice is done, and even if an application for amendment had been made at a late stage, we are of opinion that such an application should have been allowed, inasmuch as the plaintiff had offered to put into hotchpot the ornaments and the tailoring shop. In our opinion there was really no defect, either in form or procedure, in the suit; but even if there had been any, we are of opinion that he should have been allowed to amend the plaint and include these items of property. As soon as the application was made by the plaintiff, all defeats in the case had disappeared and we fail to see why the learned Subordinate Judge thought fit to dismiss the suit on an admittedly technical ground, namely, that the plaintiff did not include the whole of the joint family property. The defendants Nos. 1, 2, 4, 5 and 6 had not raised this technical plea in their written statements. On the other hand, the pleas which they had raised have not been disposed of by the Court below. We are of opinion that these defendants are entitled to their costs from the plaintiff who also is to some extent to blame, and from the defendant, Lala Gopal Das, the father of the plaintiff. We accordingly allow this appeal, set aside the judgment and the decree of the Court below and remand this case for disposal according to law. The defendants other than Lala Gopal Das will get their costs in both Courts from the plaintiff and Lala Gopal Das, The plaintiff and Lala Gopal Das shall bear their own costs.


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