JUDGMENT : Vivek Singh Thakur, J. After hearing the counsel for parties and going through the record, undisputed facts emerging from pleadings of plaintiffs are that subject matter of the main suit is property situated in Zen Tea Estate, Gopalpur, Tehsil Palampur, District Kangra H.P. described in plaint, which was owned and possessed by late Shri Faiz Murtaza Ali, who has expired on 20.6.2013, plaintiffs being mother, wife and daughter, are asserting their rights on the said property as only legal heirs of late Faiz Murtaza Ali, whereas defendant is asserting her right on the property claiming herself also second wife of late Faiz Murtaza Ali having been given the property in dispute to her as deferred Mehar/Dower payable immediately after the death of Faiz Murtaza Ali and also devolved upon her by virtue of Will dated 14.4.2013 allegedly executed by Faiz Murtaza Ali during his life time. 2. As stated in plaint, Will dated 14.4.2013 came into the knowledge of plaintiffs on 25.7.2013, after 35 days of death of Faiz Murtaza Ali and on 2nd August, 2013 defendant had entered into Bahar Villa (part of disputed property) in absence of plaintiffs, leading them to file an on- line complaint to the police as well as the Chief Minister of State and also filing a complaint with SSP and Deputy Commissioner, Dharamshala on 7th August, 2013 whereupon the Deputy Commissioner had directed the SDM Palampur to use the police force to evict the trespassers and to hand over the possession to the plaintiffs, but before the implementation of the said order, defendant obtained an interim injunction on 8th August, 2013 by filing civil suit No. 420 of 2013 in the Civil Court at Palampur, on the basis of Will dated 14.4.2013, claiming herself to be second wife of late Shri Faiz Murtaza Ali and thereafter defendant also applied for registration of Will dated 14.4.2013 in the office of Registrar/Tehsildar, Palampur. On 27th August, 2013, plaintiffs also received another Will dated 19th June, 2013 claimed to be executed by Faiz Murtaza Ali and thereafter, as the property situated at Delhi was also subject matter of these Wills, in September 2013, plaintiffs filed a suit being CS(OS) No. 1815 of 2013 in the Delhi High Court for declaring Wills dated 14.4.2013 and 19.6.2013 null and void being forged, fabricated, manufactured and concocted wherein order to maintain status quo with respect to the properties under the Wills was passed. 3. In the present suit, issues were framed on 14.7.2016 wherein on the basis of defence taken by the defendant in the written statement, issue related to Will dated 14.4.2013 was also framed as issue No. 10 as under:- "10. Whether deceased Shri Faiz Murtaza Ali had executed the valid Will dated 14.4.2013? ...OPD" 4. Whereafter on 8.8.2016 plaintiffs have moved present application under Order 6 Rule 17 Civil Procedure Code (in short CPC) bearing OMP No. 316 of 2016 seeking amendment of plaint for incorporating one more prayer in the suit for declaring Will dated 14.4.2013 null and void and also for amending the pleadings in plaint with further averments regarding the said Will and also for amendment of memo of parties by adding two new defendants being beneficiaries of Will dated 14.4.2013. 5. 5. The application has been opposed by defendant on the ground that addition of new defendants is not governed by Order 6 Rule 17 CPC but by provisions of Order 1 Rule 10 CPC and that the plaintiffs, at the time of filing of suit in December 2013, have already made averments with respect to Will dated 14.4.2013 in paragraphs 7, 13 and 20 and in the written statement filed on 12.3.2014, defendant has claimed her right on the basis of said Will specifically in paragraph 6 of the preliminary submissions of written statement, which was replied in detail in replication filed on 28.5.2014, in its paragraph 6 of the reply to preliminary submissions by plaintiffs and thus from the aforesaid pleadings, respective stand of the parties is clear since 2013-14 and from very beginning plaintiffs are neither accepting execution of Will dated 14.4.2013 much less its validity nor that defendant was legally wedded wife of Faiz Murtaza Ali and that suit property was given in Dower whereas defence/case of defendant, since beginning is that suit property has devolved upon her being Mehar/Dower and she has inherited it on account of Will dated 14.4.2013 which has already been challenged by plaintiffs in the civil suit filed in the Court at Delhi and therefore, it is not permissible for plaintiffs to invoke the jurisdiction of two Courts for trial of the issue with regard to validity of Will dated 14.4.2013. 6. Thereafter, an application OMP No. 114 of 2017 was filed by plaintiffs for placing on record the order dated 22.12.2016 passed by learned Additional District Judge, 02, South Saket-New Delhi in Civil Suit (OS) No. 1815 of 2013, whereby the said suit, filed by plaintiffs in the Court at Delhi challenging the validity of Will dated 14.4.2013, has been disposed of as withdrawn after recording the statement of learned counsel for the plaintiffs and plaintiff No. 2 Smt. Sehnaj Ali. 7. On 18.4.2017 plaintiffs have filed a separate application under Order 1 Rule 10 CPC bearing OMP No 139 of 2017 for addition of defendants No. 2 and 3 (wrongly mentioned in cause title of this application as defendants No. 2 to 6) detailed in application stating them to be beneficiaries/persons interested in and responsible for forging the Will dated 14.4.2013. 8. 8. In reply to this application, defendant has opposed this application also on the ground that after unconditional withdrawal of the civil suit filed in Delhi Court without any liberty to file it on the same cause of action, wherein validity of Will dated 14.4.2013 and another Will dated 19.6.2013 was questioned, the plaintiffs are precluded from instituting any fresh suit in respect of said subject matter in view of provisions of Order 23 Rule 1(4) CPC and further that onus of issue pertaining to proof of Will is upon the defendant being propounder of the Will. 9. Learned counsel for the plaintiffs has placed reliance upon pronouncements of the Apex Court in B.K.Narayna Pillai vs. Parameshwaran Pillai and another reported in (2000) 1 SCC 712 , Baldev Singh and others vs. Manohar Singh and another reported in (2006) 6 SCC 498 and Peethani Suryanarayana vs Repaka Venktata Ramana Kishore and others reported in (2009) 11 SCC 308 for canvassing to allow the applications, wherein it is observed that in general where the other party can be compensated, a liberal approach for allowing the amendment should be adopted, and for rejecting of amendment sought, mere delay in filing the application is not a valid ground as technicalities of law should not be permitted to hamper the adjudication of justice, however with rider that the application must be bonafide, not causing injustice to other party and not affecting the right already accrued to the defendant. In these decisions, it is also mandated by the Apex Court that the Court has been conferred with wide power and unfettered discretion to allow the amendment at any stage for the ends of justice, where the amendment is necessary to decide the real dispute between the parties with further rider that party seeking the amendment, after commencement of trial, should be able to satisfy the Court regarding the due diligence. 10. 10. Learned counsel for the defendant has placed reliance upon Ajenderaprasadji N. Pandey vs. Swami Keshavprakeshdasji N. and others reported in (2006) 12 SCC 1 , Rajkumar Gurawara (dead) through Lrs vs. S.K.Sarwagi & Company Private Limited and another reported in (2008)14 SCC 364 , and Raghu Raj Singh Rousha vs. Shivam Sundaram Promoters Private Ltd. and another reported in (2009)2 SCC 363 wherein it is held by the Apex Court that proviso to Order 6 Rule 17 CPC has been couched in the mandatory form where the applicant is not able to establish that despite exercise of due diligence, the matter could not be raised, the amendment should not be allowed as the exercise of due diligence is a condition precedent for amendment after commencement of trial. Putting further reliance on Vishwambhar and others vs. Laxminarayan (dead) through LRs reported in (2001) 6 SCC 163 it is contended that allowing the amendment in prayer as sought in the present case would amount to allow the filing of suit by plaintiffs seeking declaration about validity of Will dated 14.4.2013 which would be a time barred suit as the limitation for assailing the validity of Will has expired on 25.7.2016, more particularly, when allowing the amendment sought for, would change the nature of suit in its entirety. 11. In support of the plea of defendant that in view of provisions of Order 23 Rule 1(4) CPC amendment sought is liable to be rejected, reliance has been placed on Ranen Roy vs. Prakash Mitra reported in (1998) 9 SCC 689 , Nitin Gulwant Shah vs. Indian Bank and others reported in (2012) 8 SCC 305 and State of H.P. vs. Achhru Ram (dead) through LRs reported in AIR 2011 HP 19, wherein it is held that if the plaintiff either abandons any suit or part of claim or withdraw from the suit or part of claim without seeking permission/liberty to institute fresh suit in the same subject matter, he would be precluded from instituting any fresh suit. 12. 12. Undoubtedly, for allowing the amendment at any stage of suit, if the amendment sought is necessary for adjudication of real dispute between the parties, a liberal approach should be adopted for ends of justice ignoring the technicalities of law, however, but subject to certain limitations as enumerated verdicts of the Apex Court referred supra including that in case after allowing the amendment nature of suit is going to be changed in such a manner that it would amount to allow the filing of a civil suit barred under law. 13. In the present case, for the reasons assigned hereinafter, I am of the considered view that the amendment sought by the plaintiffs is not permissible. 14. Plaintiff is seeking amendment to allow the addition of a prayer for declaring the Will dated 14.4.2013 as null and void. Will has been alleged to be executed on 14.4.2013 by Faiz Murtaza Ali who expired on 20.6.2013 and it is an admitted case of plaintiffs that this Will came in their knowledge after 35 days of death of Faiz Murtza Ali i.e. on 25.7.2013. 15. Proposed amendment has been sought for assailing the validity of Will in question on the ground that this document has been forged and fabricated by the defendant. The Will, undoubtedly, is an instrument. Article 59 in Part IV of the First Division of Schedule to the Limitation Act provides three years limitation for filing a suit to cancel or set aside the instrument from the date when the facts entitling the plaintiff to have the instrument cancelled or set aside, first become known to him. 16. Article 56, in Part III, of the First Division of Schedule to the Limitation Act, 1963 provides the limitation period of three years to declare the forgery of an instrument issued or registered from the date of knowledge of issue or registration of the said instrument. 17. Article 58 in Part III provides three years limitation to obtain any other declaration for filing suits relating to the declaration from the date when the right to sue first accrues. 18. In the present case, undoubtedly, the Will in question is an unregistered document and therefore, there is no question of cancelling or setting aside the said instrument and thus Article 59 may not be applicable. 18. In the present case, undoubtedly, the Will in question is an unregistered document and therefore, there is no question of cancelling or setting aside the said instrument and thus Article 59 may not be applicable. Similarly, the unregistered Will cannot be said to be an instrument issued or registered as it is not a document issued or registered for its nature. Therefore, Article 56 of the Limitation Act is also not applicable. In my opinion, determination of limitation period in the present case will be governed by Article 58 wherein limitation shall start to run from the date when the right to sue first accrues meaning thereby that the limitation period has to be counted from 25.7.2013 the date when claim of execution of Will came in the knowledge of plaintiffs for the first time and three years from the said date shall be over on 24.7.2016. Therefore, limitation available to the plaintiffs for seeking declaration about validity of Will in question was upto 24.7.2016. 19. Section 3 of Limitation Act, mandates an embargo on the Court to entertain a suit which is barred by limitation irrespective of the fact that ground for limitation has been set up as a defence or not. Where only on the basis of pleading and material filed by plaintiff, but without considering material and pleading of defendant, it can be ascertained in definite terms that suit is time barred, Court has not to wait for conclusion of trial after framing issue in this regard, but suit can be rejected at threshold as barred by limitation. In the present case, the original suit has been filed for permanent and mandatory injunction and for declaration that plaintiffs only are legal heirs of deceased Faiz Murtaza Ali. By way of amendment sought, plaintiffs are intending to assail the Will dated 14.4.2013. In case amendment is allowed, it will change the nature of suit to a suit to declare the forgery of Will, and for the purpose of determination the question of limitation for filing such suit, date of filing the suit would be the date of allowing the amendment. Application for amendment has been filed on 8.8.2016, and amendment has not been allowed yet, whereas the limitation period for assailing the Will dated 14.4.2013 had expired on 25.7.2016. Application for amendment has been filed on 8.8.2016, and amendment has not been allowed yet, whereas the limitation period for assailing the Will dated 14.4.2013 had expired on 25.7.2016. When Will was brought in the notice of plaintiff by Advocate and even if, limitation is to be considered from date of assertion of right by defendant on the basis of Will, then also defendant asserted her right on the property on 2.8.2013 and obtained interim injunction from Civil Court on 8.8.2013 and in that eventuality also, limitation period has expired on 1.8.2013 or at the post on 7.8.2013. Date of filing of application for amendment i.e. 8.8.2016 is also beyond limitation period and therefore, allowing the amendment would amount to permitting a time barred suit. For this reason also, the amendment sought is not permissible. 20. No doubt, plaintiffs had filed the suit CS (OS) No. 1815 of 2013 assailing the said will at Delhi within limitation period, but the said suit has been withdrawn by plaintiffs on 22.12.2016. It is also undisputed fact that Will dated 14.4.2013 deals with three properties situated in jurisdiction of three different High Courts i.e. High Court of Himachal Pradesh, Delhi High Court and Patna High Court and in view of provisions of Section 17 of CPC the plaintiffs were at liberty to file the suit to obtain relief respecting to the property involved in the Will in any of three High Courts and plaintiffs had chosen to file the suit in the jurisdiction of Delhi High Court which was permissible under law. Therefore, it cannot be said that plaintiffs were pursuing fresh cause in a Court having no jurisdiction to adjudicate the same or the Court where suit was filed was unable to entertain the suit for any other cause of same nature and therefore, the plaintiffs are not entitled for exclusion of time spent in adjudicating the matter at Delhi. Therefore, benefit of Section 14 of the Indian Evidence Act is also not available to the plaintiffs for calculating the limitation period for assailing the validity of Will in the present suit. I draw support from the pronouncements of the Apex Court in cases Bakhtawar Singh and another vs. Sada Kaur and another reported in (1996)11 SCC 167 ) and Deena (dead) through LRs. vs. Bharat Singh (dead) through LRs and others reported in (2002)6 SCC 336 . 21. I draw support from the pronouncements of the Apex Court in cases Bakhtawar Singh and another vs. Sada Kaur and another reported in (1996)11 SCC 167 ) and Deena (dead) through LRs. vs. Bharat Singh (dead) through LRs and others reported in (2002)6 SCC 336 . 21. Even if it is considered that prayer for declaration that plaintiffs are only legal heirs of deceased Faiz Murtaza Ali also means that plaintiffs are entitled for assailing the Will dated 14.4.3013 being necessary for adjudicating the dispute between the parties and that it is not amounting to be changing the nature of original suit but can be considered to be inclusive in the prayer already made in suit and for the purpose of counting limitation date of filing original suit will be relevant, then also for the provisions of Order 23 Rule 1(4) CPC, amendment is not permissible as civil suit bearing No, CS(OS) No. 1815 of 2013 filed by plaintiffs on the same subject matter was withdrawn by plaintiffs without permission of the Court to withdraw the suit with liberty, to institute a fresh suit in respect of the subject matter of the said suit and therefore, plaintiffs are precluded from instituting any fresh suit in respect of same subject matter i.e. assailing the Will dated 14.4.2013. 22. The suit can be instituted after expiry of prescribed period of limitation with exemption from the limitation law under Order 7 Rule 6 CPC, which provides that on showing the ground in the plaint for exemption from law of limitation, the suit can be instituted after the expiration of the period prescribed in law of limitation, further provides that the Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint if such ground is not inconsistent with the ground set out in plaint. In the application for amendment neither such ground has been taken nor any such exemption has been sought. In replication also, no exemption from the law of limitation has been sought. It is stated in replication that there cannot be two trials of a document i.e. Will dated 14.4.2013 and therefore, plaintiffs have withdrawn civil suit i.e. CS No. 1815 of 2013 (re-numbered as CS No. 5872 of 2016 before the District Court, Saket, Delhi) and pursuing the present suit only for trial of said Will. It is stated in replication that there cannot be two trials of a document i.e. Will dated 14.4.2013 and therefore, plaintiffs have withdrawn civil suit i.e. CS No. 1815 of 2013 (re-numbered as CS No. 5872 of 2016 before the District Court, Saket, Delhi) and pursuing the present suit only for trial of said Will. Even if it is considered to be an explanation for seeking the amendment in the present case beyond the period prescribed for asserting the Will, the plaintiffs cannot be granted exemption from limitation law for the reasons; (a) that there is no such prayer and pleading on behalf of the plaintiffs as required under Order 7 Rule 6 CPC; (b) for the legal bar under the provisions of Order 23 Rule 1(4) CPC, the plaintiffs are precluded from filing the fresh suit as discussed herein above. 23. The Apex Court in Kandapazha Nadar and others vs. Chitraganiammal and others reported in (2007)7 SCC 65 after considering its earlier pronouncements has held that when the Court allows the suit to be withdrawn without liberty to file the fresh suit, without any adjudication, such order allowing withdrawal cannot constitute a decree and it cannot debar the plaintiffs from taking the same defence in the second round of litigation which was taken in the plaint of first suit as the order of Court allowing such withdrawal does not constitute a decree under Section 2(2) of CPC and therefore, withdrawal of suit without liberty to file fresh suit will preclude the plaintiffs from filing fresh suit on the same subject matter, but not from raising the plea in defence to the case set up by the defendant. 24. 24. In view of above settled position of law, though allowing the amendment amounting to institution of second suit on the same subject matter is barred under Order 23 Rule 1(4) CPC is not permissible under law, however, at the same time, withdrawal of civil suit CS(OS) No. 1815 of 2013, without liberty to file fresh suit, would not amount to be resjudicata against the plaintiffs for the reason that issue involved in suit filed at Delhi, which is directly and substantially an issue in the present case, has not been tried and finally decided by the Court at Delhi or any other competent Court and therefore, plaintiffs are not dis-entitled or barred from contesting the validity of Will dated 14.4.2013 regarding which specific issue No.10, as referred supra, has been framed in the present suit by putting the onus to prove the validity of Will on the defendant. The plaintiffs have every right to lead evidence in rebuttal in accordance with law to the evidence led by the defendant on this issue. 25. It is well settled that onus to prove the Will is on its propounder. One of the grounds taken by defendant for asserting her right on the property is execution of Will dated 14.4.2013 by late Faiz Murtaza Ali. Therefore, the issue No. 10 has been rightly framed by putting the onus on the defendant to prove the validity of Will and plaintiffs are legally entitled to prove contrary in the rebuttal to the claim of defendant. 26. It is not a case where the plaintiffs were not having the knowledge of execution of Will in question. There are detailed averments in the plaint with respect to knowledge of the said Will and also disputing its genuineness and validity. But the plaintiffs have chosen to assail the said Will in the civil suit filed at Delhi but not in the present suit. Now, for withdrawing the suit at Delhi without liberty to file fresh, there is a legal bar on the plaintiffs to assail the validity of said Will by way of proposed amendment as it would amount to permit filing of a suit which is barred under law. Now, for withdrawing the suit at Delhi without liberty to file fresh, there is a legal bar on the plaintiffs to assail the validity of said Will by way of proposed amendment as it would amount to permit filing of a suit which is barred under law. However the plaintiffs have every right to dispute the genuineness and validity of the Will in question during the adjudication of issue No. 10 framed in the present suit and for that purpose, the plaintiffs will also have the opportunity to lead evidence in support of their claim already set up in the plaint with regard to validity and genuineness of Will and also pleaded in the replication in response to claim set up by defendant on the basis of the said Will. 27. The defendant has contended that there is no averment in application that plaintiffs were not able to incorporate the pleadings in plaint sought to be incorporated now by way of present application despite due diligence on their part which is condemn precedent for seeking amendment after commencement of trial as provided in proviso of Order 6 Rule 17 CPC with further submission that as trial has commenced on framing of issues on 14.7.2016, the application is liable to be dismissed on this count only. As amendment has not been found to be permissible being barred by limitation and also under Order 23 Rule 1(4) CPC, there is no necessity to return the findings on this plea. 28. Impleadment of proposed defendants No. 2 and 3 has been sought on the basis of fact that they are beneficiaries of Will dated 14.4.2013 and as the prayer proposed to be added is for assailing the validity of the said Will and therefore, they are necessary party being beneficiaries of the said Will. As prayer for amendment has been declined, prayer for impleading them as defendants is also liable to be dismissed more particularly there is nothing on record to establish their any kind of right, title or interest in the suit property involved in the present suit and there is no relief sought against them. 29. There are sufficient averments already in the original plaint disputing validity of Will dated 14.4.2013 and claim of the defendant. 29. There are sufficient averments already in the original plaint disputing validity of Will dated 14.4.2013 and claim of the defendant. Nothing has been pointed in proposed amendments in plaint except proposed prayer clause, which can be said as value addition in pleadings rather it is reassertion of earlier pleading either in changed or the same phraseology and this addition thereof in plaint is useless. So far addition of prayer with regard to validity of Will dated 14.4.3013 is concerned, issue No. 10 referred supra has already been framed and it would hardly make any difference that evidence at first instance is led by defendant or the plaintiff. Therefore, I also find that material issues in dispute between the parties can be adjudicated completely and finally without incorporation of proposed amendment in the plaint and without impleading proposed defendants No. 2 and 3. 30. In view of above discussion, these applications, filed by plaintiffs, are dismissed.