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2019 DIGILAW 959 (RAJ)

Samindra Pal Singh @ Kaka S/o Shri Jairnel Singh v. Surendra Pal Singh S/o Shri Chand Singh

2019-04-01

DINESH MEHTA

body2019
ORDER : 1. The present writ petition is directed against the order dated 19.01.2017 passed by learned Civil Judge, Pilibanga, District Hanumangarh, whereby an application for amendment filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure has been rejected. 2. Looking to the short controversy involved in the matter and in view of the consent given by learned counsel appearing for the respondent, the writ petition is being finally heard and decided. 3. Facts appertain to the present writ petition are that the plaintiff had filed a suit on 19.08.2010, for cancellation of Will dated 25.11.1999 and declaring to be null and void. 4. After filing of the suit aforesaid, the plaintiff realised that certain relevant facts regarding the date of knowledge of the Will have not been incorporated in the plaint at appropriate place, for which an application dated 19.01.2011 came to be moved praying that para no. 10(A) in the following term be permitted to be incorporated:- ^^10¼,½ ;g fd okn esa of.kZr olh;r dk Kku 12-8-2010 dks gksus ds i'pkr olh;r ds vuqlkj bUrdky ntZ ugha djokus ds fy, fnukad 14-8-2010 dks dgk rks Áfroknh Li"V bUdkj gks x;k vkSj dgk dh eSa bl olh;r dk bUrdky ntZ djokÅxk] ;gh okn dkj.k gSA** 5. The respondent-defendant opposed the said amendment by way of filing a reply and contended that the amendment in question has been sought to correct the error in the plaint and essentially to cover up the lacunae left therein. 6. Learned Trial Court, rejected plaintiff’s aforesaid application vide its order impugned dated 19.01.2017, inter-alia observing that the amendment in question has been sought, with a view to correct the lacunae left in the plaint. Learned Court below also observed that if the amendment prayed for is allowed, the defendant’s right shall be prejudicially effected. 6. Learned Trial Court, rejected plaintiff’s aforesaid application vide its order impugned dated 19.01.2017, inter-alia observing that the amendment in question has been sought, with a view to correct the lacunae left in the plaint. Learned Court below also observed that if the amendment prayed for is allowed, the defendant’s right shall be prejudicially effected. It will not be out of place to reproduce the relevant observation made by the Trial court:- ^^bl Ádkj Áfroknh }kjk vius tokc nkok esa fookfnr olh;r dk Kku oknh dks fnuakd 29-11-1999 ls gksus vkSj oknh }kjk mDr okn olh;r dk Kku gksus ds 11 o"kZ i'pkr is'k djus dk dFku Áfrj{kk ds rkSj ij fd;k gS vkSj oknh@ÁkFkhZ }kjk tks la'kks/ku pkgk x;k gS] og Áfroknh }kjk vius tokc nkok esa Áfrj{kk ds rkSj ij mBk;s x, Áfrj{kk ds cpko Lo:i oknh@ÁkFkhZ }kjk ÁkFkZuk&i= is'k fd;k gSA D;ksafd mDr la'kks/ku ls oknh@ÁkFkhZ vius okn&i= dh deh iwfrZ djuk pkgrk gSA ;fn mDr la'kks/ku dh vuqefr nh tkrh gS rks Áfroknh dh Áfrj{kk ij foijhr ÁHkko iM+rk gS vkSj lkFk gh oknh@ÁkFkhZ }kjk mDr ÁkFkZuk&i= ln~Hkkoh iw.kZ :i ls is'k fd;k tkuk Árhr ugha gksrk gSA D;ksafd oknh@ÁkFkhZ }kjk viuk okn&i= fnukad 19-08-2010 dks is'k fd;k x;k Fkk vkSj fnukad 26-11-2010 dks Áfroknh }kjk tokc nkok is'k fd;k x;k Fkk vkSj tokc nkok ÁLrqr gksus ds i'pkr Áfroknh }kjk vius tokc nkok esa oknh dk okn&i= fe;kn ckgj gksus dh Áfrj{kk mBkus ij oknh }kjk mDr la'kks/ku dk ÁkFkZuk&i= vius okn&i= dh deh iwfrZ gsrq is'k fd;k x;k gS] ftlls mDr ÁkFkZuk&i= ln~HkkoiwoZd Árhr ugha gksrk gSA vr% oknh@ÁkFkhZ }kjk ÁLrqr ÁkFkZuk&i= vkns'k 06 fu;e 17 lhŒihŒlhŒ ln~Hkkoiw.kZ ugha gksus o Áfroknh dh Áfrj{kk ij foijhr ÁHkko iM+us ds dkj.k vLohdkj dj [kkfjt fd;k tkrk gSA** 7. Learned counsel for the petitioner submitted that though the facts regarding knowledge of the contentious Will have already been stated in para no. 11 of the plaint, but however assertion or reiteration thereof and a separate paragraph regarding accrual of cause of action could not be made in the plaint. He argued that this defect was unintentional and curable. 8. In support of his argument, Mr. 11 of the plaint, but however assertion or reiteration thereof and a separate paragraph regarding accrual of cause of action could not be made in the plaint. He argued that this defect was unintentional and curable. 8. In support of his argument, Mr. Bhaleria cited a judgment of this Court delivered on 06.07.2017, in S.B. Civil Writ Petition No. 355/2010, Mani Ram vs. Om Prakash and drawing simile contended that the plaintiff should also be given permission to correct the error crept in the plaint. 9. Per contra, Mr. Bansal, learned counsel appearing for the respondent submitted that as the Trial Court has rightly rejected plaintiff’s application dated 19.01.2011, no interference is warranted in the supervisory jurisdiction of this Court. In support of this contention Mr. Bansal relied upon a judgment of this Court in case of Life Insurance Corporation of India, Jodhpur vs. State of Rajasthan and Others, 2015 (1) DNJ (Raj.) 222. 10. With the help of the judgment aforesaid, learned counsel contended that petitioner – plaintiff cannot be permitted to fill up the lacunae, left in the plaint. He pointed out that a specific objection was raised by the defendant that since the plaintiff has not disclosed the accrual of cause of action, the suit of the plaintiff deserves dismissal. 11. I have heard learned counsel for the parties and perused the material available on record. 12. It is true that a specific averment regarding accrual of cause of action has not been made by the plaintiff, however, a complete and comprehensive reading of the plaint reveals that not only the factum of the knowledge of the Will to the plaintiff has been stated but also the essential facts relating to cause of action have been mentioned. 13. In considered opinion of this Court, the requirement of disclosing the cause of action is to be considered after complete reading of the plaint. It is the disclosure and not mentioning of the cause of action, which is required under law. Hence, since the plaintiff in the present case has inadvertently forgot to mention such date, the Trial court can very well permit amendment in the plaint to meet the ends of justice. The lacunae as pointed out by the defendant was not fatal to the maintainability of the suit, more particularly in the facts obtaining in the present case. 14. Hence, since the plaintiff in the present case has inadvertently forgot to mention such date, the Trial court can very well permit amendment in the plaint to meet the ends of justice. The lacunae as pointed out by the defendant was not fatal to the maintainability of the suit, more particularly in the facts obtaining in the present case. 14. Adverting to the judgment in the case of Life Insurance Co. Ltd. (supra) cited by Mr. Bansal, suffice it to observe that in the facts of the case aforesaid, the plaintiff had initially asserted that the dispute pertained to land admeasuring 15x60 ft, which came to be contested tooth and nail before three forums, i.e. trial Court, First Appellate Court and Revisional Court and orders came to be passed. Thereafter, leave was sought to amend the measurement of land from 15 x 60 ft. to 25 x 60 ft. for which this Court observed that the amendment would change the very ‘subject matter’ of the dispute and therefore was wholly improper and against the settled principles of law. 15. Whereas in the present case, the amendment has been sought at the stage of trial itself and if the same is allowed, it will not change the nature of the suit. Therefore, the judgment cited by the learned counsel is clearly distinguishable on facts. 16. As an upshot of discussion foregoing, the writ petition is allowed. The impugned order dated 19.01.2017 is quashed and set aside. Petitioner’s application dated 19.01.2011 stands allowed. 17. The stay application No. 1399/2017 is also disposed of. The petitioner shall file amended plaint within a period of 15 days from today.