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2016 DIGILAW 88 (RAJ)

Ramniwas v. Rajaram

2016-01-13

ARUN BHANSALI

body2016
ORDER : Arun Bhasali, J. This writ petition has been filed by the petitioner aggrieved against the order dated 19.10.2015 passed by the trial court, whereby the application filed by the petitioner under Order 6, Rule 17 CPC read with Section 151 CPC has been rejected. 2. The petitioner-plaintiff filed a suit for cancellation of Will dated 02.05.1990 executed by Mst. Jhamku; the suit was filed on 05.07.2005; written statement was filed by the defendants on 24.01.2008 and the issues were framed on 09.04.2009. The issues pertain to the right of the plaintiff to seek cancellation of Will and whether the suit was within limitation. 3. Both the parties led evidence and where after, when the arguments were being heard, the present application was filed seeking to introduce para 3-A and para 14-A in the plaint. 4. The application was opposed by the respondent-defendant and the trial court, after hearing the parties came to the conclusion that the petitioner has failed to establish the requirements of proviso to Order 6, Rule 17 CPC and that if permitted, the amendment would change the nature of the suit and consequently, dismissed the application. 5. Learned counsel for the petitioner submits that the trial court was not justified in dismissing the application, inasmuch as, the petitioner was simply seeking to introduce two paragraphs in the plaint which were based on the material/documents, which was already exhibited during the course of evidence of the parties and, therefore, the trial court was not justified in dismissing the application. 6. Learned counsel for the respondent supported the order impugned. 7. I have considered the submissions made by learned counsel for the parties and have perused the material placed on record. 8. From the perusal of the plaint as well as the application seeking amendment under Order 6, Rule 17 CPC, it is apparent that while in the plaint the petitioner had not taken any plea regarding the release deed dated 28.11.1979 as void, the said aspect was sought to be introduced by way of amendment and also had not taken any plea with regard to provisions of Section 14 of the Limitation Act which was also sought to be introduced. 9. The reason for delay indicated in the application under Order 6, Rule 17 CPC has been that the plaintiff had changed his counsel and on perusal, the counsel felt the requirement for the proposed amendment. 9. The reason for delay indicated in the application under Order 6, Rule 17 CPC has been that the plaintiff had changed his counsel and on perusal, the counsel felt the requirement for the proposed amendment. 10. If the reasons indicated in the application seeking amendment in the plaint at the fag end of the trial when the matter was ripe for final hearing are taken as sufficient compliance of proviso to under Order 6, Rule 17 CPC, then in every case where the applicant would have no other genuine reason, as required by proviso, the change of counsel will be taken as the plea, which plea cannot be sustained and, therefore, the trial court was justified in coming to the conclusion that the petitioner has failed to establish a proper cause in terms of proviso to Order 6, Rule 17 CPC. 11. As noticed herein before, the plea sought to be raised by the petitioner was totally absent from the plaint and was sought to be introduced by way of amendment and, therefore, the trial court was justified in also coming to the conclusion that if the petitioner was permitted to amend the plaint, the same would change the nature of the suit. 12. The plea raised by learned counsel for the petitioner that the petitioner wanted to bring the plaint in consonance with the evidence already led, also goes against the established practise wherein a party is required to lead evidence in terms of the plaint and not vice versa i.e. the pleadings are sought to be brought in consonance with the evidence already led. 13. In view of the above discussion, there is no substance in the writ petition, the same is, therefore, dismissed.