KANTILAL HARGOVANDAS ALIAS SADHU RAMDASJI GURU RAMSEVAKDAS Vs. MANIRAMDASJI GURU NARAYANDASJI RAMANANDI SADHU

JUDGEMENT

(1.) What is rejected by the trial Court ? Is it an application for permitting to file counter-claim under the provisions of Order 8 Rule 6A of the Civil Procedure Code or an application for inserting amendment in a written statement under Order 6 Rule 17 of the Civil Procedure Code ? Answer to this question will determine the fate of this revision application.

(2.) Respondent No. 1 filed Miscellaneous Application and prayed that he be granted probate and or letters of administration with Will annexed in respect of Will dated 5/12/1979 executed by deceased Shri Ramanand Sadhu. The application was contested by the petitioner herein and by respondent No. 2. Hence the application was converted into suit as per order dated 3/07/1980 and it has been numbered as Civil Suit No. 2096 of 1980. The petitioner filed his written statement and disclosed his defence on 12/03/1981 Thereafter the trial Court framed issues and proceeded to record evidence of the parties. Examination of the plaintiff was over on 22/03/1984 On Marc 26/03/1984 the petitioner preferred two applications Exh. 42 and Exh. 44. By Exh. 42 he prayed that an additional issue be framed as follows:

(3.) It is contended that the application for amendment could have been filed at any stage of the proceedings and the same should not have been rejected by the trial Court. The trial Court committed gross error and or illegality in holding that defendant No. 2 was trying to fill up the lacuna left out in the defence and in holding that since the application was given at a late stage it was required to be rejected. In the submission of the learned Counsel for the petitioner necessary averments with regard to the Will dated 15/12/1979 executed by deceased Shri Ramanand Sadhu in favour of the petitioner (defendant No. 2) have already been made in the written statement and therefore there was no question of the plaintiff being prejudiced or being taken by surprise. Therefore the learned Counsel for the petitioner submits that the trial Court has failed to exercise the jurisdiction vested in it. At any rate in his submission the trial Court has committed grave irregularity and/or illegality in rejecting the applications for amendment. It is further submitted that once the amendment is granted another application for raising additional issue ought to have been granted as a necessary corollary. The contention raised by the petitioner cannot be accepted for the following reasons.