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2019 DIGILAW 2547 (RAJ)

Revashankar v. Chandraswaroop Sharma

2019-09-20

ABHAY CHATURVEDI

body2019
JUDGMENT Abhay Chaturvedi, J. - The present writ petition has been preferred against the order dated 16.01.2018 passed by learned Additional District Judge No.1, Jodhpur Metropolitan, whereby the application filed by the petitioner-defendant under Order 6 Rule 17 CPC read with Section 151 CPC was rejected. 2. Brief facts of the case are that, the respondent No.1-plaintiff filed a suit for partition and permanent injunction against the petitioner-defendant which is pending before the trial court. The petitioner-defendant filed written statement denying the averments made in the plaint and submitted that the property in question is self acquired property of late Mangi Lal and during his lifetime, he executed a 'Will' dated 27.09.1999 (Annexure 3) in favour of his wife Smt. Patasi Devi and the petitioner-defendant. During the pendency of the suit, Smt. Patasi Devi (Defendant No. 1), mother of the petitioner, passed away and as such her name was deleted from the array of the defendants. Thereafter, the petitioner-defendant obtained the original 'Will' dated 01.02.2008 from one Rajendra Sharma which was duly executed by Smt. Patasi Devi (Defendant No. 1) in favour of the petitioner regarding the property in question. The petitioner-defendant, on 18.05.2017 moved an application under Order 6 Rule 17 CPC before the trial court seeking addition of averments regarding the fact that Smt. Patatsi Devi during her lifetime executed Will dated 01.02.2008 in favour of the petitioner regarding disputed property. The petitioner prayed for an amendment in the written statement by way of insertion of Para 7A after para 7 of the written statement. 3. The learned trial court after hearing the learned counsel for the parties, dismissed the application moved by the petitionerdefendant on the sole ground of inordinate delay vide order impugned dated 16.01.2018. Hence, the present writ petition. 4. The main thrust of the argument of the learned counsel for the petitioner is that the Will came into force after the death of Smt. Patasi Devi on 19.02.2019. Before her death, there was no occasion to file the Will executed by Smt. Patasi Devi in the court. As such, without any delay, the application seeking amendment in the written statement was filed. It is further stated that the suit is at preliminary stage of completion of pleadings of the parties. It is also submitted that if the written statement is permitted to be amended, no prejudice would be caused to either of the parties. As such, without any delay, the application seeking amendment in the written statement was filed. It is further stated that the suit is at preliminary stage of completion of pleadings of the parties. It is also submitted that if the written statement is permitted to be amended, no prejudice would be caused to either of the parties. In support of the contentions, learned counsel for the petitioner has placed reliance upon the judgment rendered in the cases of Baldev Singh & Ors. Vs. Manohar Singh & Anr., (2006) 6 SCC 498 and Sunil Gupta Vs. Nargis Khanna,2014 4 CurCC 436 . 5. Learned counsel for the respondent while supporting the impugned order submitted that the said application has been filed after an inordinate delay without giving proper explanation for the said delay and hence the learned trial court has rightly rejected the application. 6. Heard learned counsel for the parties and considered the rival submissions made on behalf of both the parties. 7. It is settled law that while considering the application for amendment, the Courts have very wide discretion in the matter of amendment of pleadings. The application for amendment should not be rejected only on sole ground of delay. In the case of Baldev Singh & Ors. Vs. Manohar Singh & Anr., (2006) 6 SCC 498 , the Apex Court observed in Para 15 as under: "It is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case.'' 8. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case.'' 8. Keeping in view the law laid down by the Apex Court in the case of Baldev Singh (supra), this Court is of the opinion that the trial court should be liberal in allowing the amendment of the written statement. 9. In the instant case, the petitioner has submitted that as soon as he came to know about the said 'Will', he immediately preferred the said application for amendment in the written statement. The amendment proposed by the petitioner-defendant is necessary to determine the real controversy between the parties and also for avoiding multiplicity of suits. In a partition suit, prayer for amendment made in view of subsequent events happened between the parties and the same is necessary to determine the real controversy between the parties, the amendment is required to be allowed. 10. It is also relevant to note that since the suit is at the stage of the completion of pleadings of the parties. As such, the proposed amendment is not likely to cause any prejudice to the other side which cannot be compensated adequately. 11. In view of the above, this Court is of the firm opinion that the trial Court has committed an error in rejecting the application filed by the petitioner under Order 6 Rule 17 CPC for amendment in the written statement and thus the impugned order deserves to be quashed and set aside. 12. Consequently, the writ petition is allowed and the impugned order dated 16.01.2018 is quashed and set aside. The application filed by the petitioner under Order 6 Rule 17 read with Section 151 CPC is allowed subject to payment of the cost of Rs.5,000/- to be paid to the plaintiff.