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2018 DIGILAW 2163 (HP)

Bimla Devi v. Tihnu Devi

2018-12-05

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. Being aggrieved and dissatisfied with the order dated 23.3.2018 passed by the Civil Judge, Anni, District Kullu, Himachal Pradesh in Case No. 26-1 of 2010 titled Tihnu Devi vs. Bimla Devi, whereby an application under Order 6 Rule 17 read with S. 151 CPC, having been filed by the respondent-plaintiff (hereinafter, 'plaintiff’) came to be allowed, petitioner-defendant (hereinafter, 'defendant’) has approached this court in the instant proceedings filed under Art. 227 of the Constitution of India, praying therein to set aside the aforesaid order. 2. Facts, as emerge from the record are that the plaintiff filed a suit for possession of half share in Khasra No. 29 measuring 11 Bigha in Khewat Khatauni No. 255/307 in Mohal Bari, Tehsil Nirmand, District Kullu, Himachal Pradesh, in the court of learned Civil Judge, Anni, averring therein that after death of father of the plaintiff, when mutation of inheritance was taken up for registration by Assistant Collector 2nd Grade, Nirmand on 23.1.2009, defendant produced a registered Will alleged to have been executed by father of the plaintiff in favour of the defendant, but such Will was turned down by the Assistant Collector 2nd Grade Nirmand, on the ground that the father of the plaintiff, Shri Paras Ram had cancelled the alleged will vide registered document No. 102/2003 dated 16.12.2003, wherein it has been specifically mentioned that the registered Will No. 101 dated 1.12.1999 stands cancelled by the father of the plaintiff. In the suit, plaintiff claimed that since the Will allegedly executed by her father in favour of defendant was revoked, she being legal heir of late Paras Ram is also entitled to half share in the suit property. Defendant by way of written statement, refuted the aforesaid claim and averred that Paras Ram, by way of Will, had bequeathed his entire property in her favour and as such, plaintiff has no right, title or interest over the same. 3. Learned Court below, on the basis of pleadings of parties, framed issues and thereafter, parties led evidence also. After closure of the evidence of defendant, when matter was fixed for rebuttal evidence, plaintiff filed an application under Order 6 Rule 17 read with S.151 CPC, praying therein for amendment of plaint stating that the father of the plaintiff namely Paras Ram, had cancelled the alleged Will No. 101 dated 1.12.1999 vide revocation deed No. 102/03 dated 16.12.2003. After closure of the evidence of defendant, when matter was fixed for rebuttal evidence, plaintiff filed an application under Order 6 Rule 17 read with S.151 CPC, praying therein for amendment of plaint stating that the father of the plaintiff namely Paras Ram, had cancelled the alleged Will No. 101 dated 1.12.1999 vide revocation deed No. 102/03 dated 16.12.2003. Plaintiff further stated in the application that though the Will in question was registered on 13.12.1999, but due to clerical mistake, date of registration was recorded as 1.12.1999 in the revocation deed, as such, she be permitted to carry out amendment in the plaint. Plaintiff prayed in the application that she be allowed to amend the plaint to the extent that the date of execution of Will was 13.12.1999 and not 1.12.1999, which prayer having been made by the plaintiff was opposed by defendant by filing reply. However, the fact remains that the application was allowed by the learned Court below, who permitted the plaintiff to carry out amendment in the plaint, as prayed for in the application. 4. Having heard the parties and perused the material available on record vis-àvis reasoning assigned by the court below, this court is persuaded to agree with the contention of Mr. Romesh Verma, learned counsel representing the defendant that the plaint having been filed by plaintiff is based upon true facts and documents on record, as such, there is/was no requirement to amend the plaint. While referring to revocation deed i.e. annexure P-5, which otherwise is heavily relied upon by the plaintiff, while contesting the Will put up by the defendant, Mr. Verma contended that in revocation deed, late Paras Ram has categorically stated that the Will in question was executed in favour of Bimla Devi i.e. defendant on 1.12.1999. He further stated that once the pleadings adduced on record by plaintiff are based upon document, being relied upon by her, there is /was no necessity to amend the plaint. 5. Having carefully perused the revocation deed referred to herein above, this court finds that it has been categorically stated by the plaintiff in the plaint sought to be amended, that the Will in favour of the defendant was executed on 1.12.1999. 5. Having carefully perused the revocation deed referred to herein above, this court finds that it has been categorically stated by the plaintiff in the plaint sought to be amended, that the Will in favour of the defendant was executed on 1.12.1999. If the case set up by the plaintiff is read in its entirety, it clearly suggests that, in nutshell, case of the plaintiff is that the Will executed by late Paras Ram in favour of the defendant was cancelled/revoked by way of revocation deed, annexure P-5, wherein it has been specifically recorded that the Will dated 1.12.1999, stands revoked and as such this court is in agreement with Mr. Romesh Verma, learned counsel representing the defendant that the pleadings adduced on record by the plaintiff are strictly based upon annexure P-5 i.e. document sought to be relied upon by her in support of her claim, as such, there is no requirement of amending the plaint. Otherwise also, this court finds that there is no plausible explanation rendered on record by the plaintiff, while seeking amendment in the plaint with regard to date of execution of the Will. Learned Court below, merely on the basis of averments contained in the application permitted plaintiff to carry out amendment in the plaint. 6. At this stage, it is contended by Mr. Raj Kumar Negi, learned counsel representing the plaintiff that bare perusal of the annexure P-6 i.e. Will in question itself suggests that same was executed on 13.12.1999, as such, learned Court below rightly allowed the plaintiff to amend her plaint, but this court is not in agreement with the aforesaid argument having been made by the learned counsel representing the plaintiff for the reason that the question with regard to genuineness and correctness of the aforesaid Will is yet to ascertained by the learned trial Court in the totality of evidence led on record by the respective parties, whereas, careful perusal of the plaint having been filed by the plaintiff itself suggests that her entire claim is based upon annexure P-5 i.e. revocation deed, wherein, it has been stated that the Will in question was executed on 1.12.1999, which factum has been otherwise pleaded in the original plaint. While referring to annexure R-4, i.e. order passed by the Assistant Collector 1st Grade, Mr. While referring to annexure R-4, i.e. order passed by the Assistant Collector 1st Grade, Mr. Negi made a serious attempt to persuade this court to agree with his contention that since revenue authority has already held that Will No. 101 is dated 13.12.1999, and such order has not been assailed by the defendant, mention of wrong date, if any, in the revocation deed, annexure P-5, has no relevance, also needs to be rejected at this stage. Careful perusal of pleadings adduced on record nowhere suggests that the factum with regard to passing of order dated 29.9.2011, if any, by Assistant Collector 1st Grade, Nirmand, ever came to be incorporated in the plaint or in the application, wherein amendment was sought. Similarly, careful perusal of impugned order nowhere suggests that the factum with respect to passing of order dated 29.9.2011 by Assistant Collector 1st Grade, Nirmand, was taken note of by the learned Court below, while allowing amendment. Needless to say, party can not be allowed to lead evidence, if any, beyond the pleadings. 7. Their Lordships of the Hon'ble Supreme Court in State of Madhya Pradesh v. Union of India and another reported in (2011) 12 SCC 268 have held that where an application is filed after the commencement of the trial, it must be shown that despite due diligence, said amendment could not have been sought earlier. Their lordships have held as under: 7. The above provision deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it must be shown that in spite of due diligence, such amendment could not have been sought earlier. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations.” 8. The Hon’ble Apex Court in Chakreshwari Construction Private Limited vs. Manohar Lal, (2017) 5 SCC 212 , has culled out certain principles while allowing or rejecting the application for amendment, which are as under:- “13. The principle applicable for deciding the application made for amendment in the pleadings remains no more res integra and is laid down in several cases. In Revajeetu Builders and Developers vs. Narayanaswamy & Sons, (2009) 10 SCC 84 , this Court, after examining the entire previous case law on the subject, culled out the following principle in para 63 of the judgment which reads as under: (SCC p.102) “63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money. (4) refusing amendment would in fact lead to injustice or lead to multiple litigation. (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.” 9. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.” 9. In the aforesaid judgment, the Hon'ble Apex Court has clearly held that while allowing/rejecting the application for amendment of the plaint, it is to be seen whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case. In the case at hand, since the entire suit of the plaintiff rests on the date of Will mentioned in the revocation deed, as such, allowing the amendment, as sought by the plaintiff, would change the nature of the suit and as such, amendment, as sought by the plaintiff, could not have been allowed by the learned Court below. 10. Consequently, in view of the discussion made herein above as also in light of law laid down by the Hon'ble Apex Court on the subject, it is clear that the plaintiff has failed to make out a case for allowing her application seeking amendment to the plaint and learned Court below has erred in allowing the same. 11. Consequently, the present petition is allowed. Order dated 23.3.2018 passed by the Civil Judge, Anni, District Kullu, Himachal Pradesh in Case No. 26-1 of 2010 titled Tihnu Devi vs. Bimla Devi, is quashed and set aside. However, it is made clear that the observations made herein above shall remain confined to the decision of the present petition alone and shall have no bearing upon the merit of the main case before the learned Court below. Pending applications, if any, are disposed of. Interim direction, if any, is vacated.