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2018 DIGILAW 1618 (JHR)

Jaibun Bibi v. Md Ismail Khan

2018-07-24

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. - The learned counsel for the petitioners states that defects as notified by the Registry have been removed. 2. The petitioners who are defendants in Original Suit No. 95 of 2015 are aggrieved of order dated 04.12.2017 by which amendment in the plaint has been allowed. 3. Plea taken by the petitioners is that through amendment in the plaint the plaintiffs intend to resile from their admissions in the plaint and now they want to set-up a new case which was not originally pleaded by them. 4. Original Suit No. 95 of 2015 was instituted by Md. Ismail Khan and four others for a decree for declaration that the defendant no. 1 has no interest in the suit schedule properties and the deed of gift dated 15.06.2015 executed by defendant no. 1 in favour of her sons who are defendant nos. 2 to 5 is inoperative, null and void and not binding on the plaintiffs. The defendants contested the suit by raising a plea of non-joinder of parties and that the suit is barred under Section 34 of the Specific Relief Act, 1963. The defendants have disputed the genealogical table described under schedule ''A'' of the plaint and they have pleaded that on death of Meharban Khan who died sometimes in the year 1954 leaving behind son namely, Usman Khan and two daughters namely, Manir Bibi and Masir Bibi, however, shortly thereafter his son namely, Usman Khan also died, leaving behind his widow namely, Jainab Bibi and four sons as well as two daughters. At the time of death of Usman Khan his wife was carrying a child and she gave birth to fifth son namely, Islam Khan after the death of her husband. The defendants have disputed claim of the plaintiffs that the defendant no.1 has no interest in the properties of her father. 5. On admitted facts, the suit is at the initial stage and accordingly, regour of proviso to Order VI Rule 17 CPC is not attracted in this case. Under Order VI Rule 17 CPC wide power has been conferred upon the court to permit amendment in the pleadings and by now it is well-settled that amendment in the pleadings can be permitted at any stage of the trial, even at the stage of final hearing in the suit. Under Order VI Rule 17 CPC wide power has been conferred upon the court to permit amendment in the pleadings and by now it is well-settled that amendment in the pleadings can be permitted at any stage of the trial, even at the stage of final hearing in the suit. Plea taken by the plaintiffs in their application for amendment dated 22.05.2017 is that on account of typographical errors and inadvertence the word gift was not pleaded in the plaint. The learned counsel for the petitioners submits that the expressions "relinquishment" and "gift" have two different connotations and once the plaintiffs have pleaded that Manir Bibi and Masir Bibi relinquished their rights in favour of the plaintiffs, now they cannot be permitted to take a stand that the aforesaid persons have gifted the entire property left by Meharban Khan in favour of the plaintiff. In my opinion, it would really not cause any prejudice to the defendants even if the plaintiffs initially claimed that Manir Bibi and Masir Bibi relinquished their rights over the suit property in their favour and now they want to assert that they had gifted the suit property in favour of the plaintiffs, for the suit is at its initial stage. In fact, in their written statement only objection taken by the defendants to the stand taken by the plaintiffs in paragraph no. 4 of the plaint, that Manir Bibi and Masir Bibi relinquished their rights by Oral Hibba, is that no date of Oral Hibba has been disclosed by the plaintiffs. The learned trial Judge noticing that the plaintiffs have pleaded Oral Hibba has allowed amendment in the plaint. As a consequence, the defendants have been permitted to file additional written statement to the extent plaint has been amended. 6. In my opinion, in the above facts the trial Judge has not committed any error in law while permitting the plaintiffs to amend the plaint and accordingly, challenge to the impugned order dated 04.12.2017 fails. 7. The writ petition, bereft of merit, is dismissed.