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2014 DIGILAW 2151 (RAJ)

Nilima Joshi v. Shri Praveen Kumar

2014-12-17

ARUN BHANSALI

body2014
JUDGMENT 1. - This writ petition under Article 226 and 227 of the Constitution of India is directed against order dated 29.04.2008 passed by the trial court, whereby, the application filed by the petitioners under Order 6, Rule 17 CPC has been dismissed. 2. The petitioner-plaintiff filed a suit for partition; in the plaint, certain properties were indicated and it was also indicated that as the petitioner is a widow and is unaware about the joint family properties, she reserves her right to amend the plaint and include the properties as and when she becomes aware of the same. 3. After plaintiff's evidence was over and defendants' evidence was in progress, an application under Order 8, Rule 1A CPC came to be filed by the defendants, wherein, certain documents were sought to be produced; the said documents contained reference relating to certain properties, which were not subject matter of the suit and, therefore, the petitioner filed an application under Order 6, Rule 17 CPC seeking amendment of the plaint based on information received by her from the documents produced by the defendants. 4. The said application was opposed by the defendants. 5. The trial court came to the conclusion that the requirement of Order 6, Rule 17 CPC did not exist in the matter; it came to the conclusion that the plaintiff has not been diligent enough and, therefore, was not entitled to amendment; it was also of the opinion that a fresh suit can also be filed and, consequently, dismissed the application. 6. 6. It is submitted by learned counsel for the petitioners that looking to the status of the petitioner that she was a widow and was pitted against her brother-in-laws; had very little information about the joint family properties and the documents were deliberately disclosed by the defendants at the stage of their evidence, the petitioner was left with no alternative but to include the said properties as subject matter of the suit so as to seek partition of the said properties also; it was submitted that if the amendment as sought was not granted, the petitioner would be deprived of her share in the said properties and the amendment was necessary for the purpose of determining the real questions in controversy between the parties; it was submitted that the trial court has observed that the separate suit may be filed and the basic purpose of permitting an amendment i.e. avoiding multiplicity of suits would be frustrated and, therefore, also, the amendment should have been accepted by the trial court. 7. Learned counsel for the respondents vehemently opposed the prayer; it was submitted that the application was filed belatedly and the petitioner cannot be permitted to continue the suit open endedly so as to include the properties as and when she desires and, therefore, the application was rightly dismissed by the trial court and the writ petition also deserves to be dismissed. 8. I have considered the rival submissions made by learned counsel for the parties. 9. It is not in dispute that the petitioner, even when, she filed a suit was apprehending that she was not able to include all the properties of the joint family, regarding which, she was entitled to seek partition and, therefore, she made a specific mention regarding the above aspect in her plaint itself; the handicap of the petitioner can be understood, inasmuch as, she is a widow and had a four years old son only and was fighting battle for partition against her brother-in-laws and sister-in-laws. It is also important to notice that the documents which contained reference about numerous properties were not disclosed by the defendants at the relevant stage of the suit and apparently & deliberately were disclosed by them during course of their evidence by way of filing application under Order 8, Rule 1A (3) CPC. It is also important to notice that the documents which contained reference about numerous properties were not disclosed by the defendants at the relevant stage of the suit and apparently & deliberately were disclosed by them during course of their evidence by way of filing application under Order 8, Rule 1A (3) CPC. It is not the case of the defendants that the properties sought to be made subject matter of the suit by way of amendment had no relevance whatsoever with the subject matter of the suit; irrespective of the fact as to what defence they may take qua plaintiff's claim for partition. The very fact that the trial court came to the conclusion that a separate suit can be filed by the plaintiff, necessarily means, that the trial court also found the subject matter of amendment as relevant in the present suit. 10. In view of the above facts and circumstances, it is apparent that the amendment sought by the petitioner is necessary for the purpose of determining the real questions in controversy between the parties; the finding of the trial court regarding lack of due diligence on part of the petitioner also has apparently no basis, inasmuch as, it is not even the case of the defendants that the petitioner was well aware of the subject matter of the documents produced by them by way of application under Order 8, Rule 1A CPC. 11. So far as the factum of delay is concerned, the respondents can be compensated by way of cost for the delay, which has occurred/likely to occur on account of filing of the present application and consequence of application being accepted. 12. In view of the above discussion, the writ petition filed by the petitioners is allowed. The order dated 29.04.2008 passed by the trial court rejecting the application under Order 6, Rule 17 CPC is set aside and the application filed by the petitioner under Order 6, Rule 17 CPC is allowed on payment of cost of Rs. 5,000/- to the defendants.Petition allowed with cost. *******