(1.) IN this proceeding on an application for grant of letters of administration, the parties had adduced evidence long back and the matter is fixed for hearing arguments. At this stage, an application for amending the written statement has been filed by the Respondent allegedly for the purpose of elucidation, elaboration, specification and clarification of the pleadings. It was asserted that the proposed amendment would not change the nature of the defence and as it was a suit in the Testamentary jurisdiction of the Court in which the validity of a Will was under challenge, the Court could always allow the amendment to be incorporated. The Plaintiff objected to the prayer stating that the application was malicious and was directed to delay the proceeding. It was indicated that the petition for letter of administration was presented on 15.3.1990 and pleadings on behalf of the defence had also come. Issues were framed as far back as on 6.2.1991 and on the basis of such issues, evidence was adduced. The Petitioner filed documentary evidence and examined his witnesses and his evidence stood closed on 24.4.1991. The caveator -Respondent also examined four witnesses and her evidence stood closed on 16.7.1991. It was contended that if the amendment be now allowed, the entire case would reopen and in fact a de -novo trial would be necessary. It was further stated that by the amendments, the entire nature of defence was proposed to be changed. The application was stated to be highly belated and was stated to be liable to be dismissed. In the course of arguments on this point, Shri Ajit Kumar, learned Counsel for the caveator -Respondent, submitted that there would be no prayer on his behalf either to press for any restructuring of the issues or for examination of any witness or production of any paper. He also would not seek further cross -examination of the Plaintiff or his witnesses in the light of the proposed amendments. It was only stated that materials are there on record to cover the averments now to be introduced by way of amendments and the caveator -Respondent wants only a pleading -base for being able to rely on those materials. It was contended that delay is of no consideration as an application under Order VI, Rule 17, Code of Civil Procedure may be filed at any point of time. Shri Navin Sinha appearing for the Plaintiff submitted that the Plaintiff was required to deny on oath the factual averments made in the pleading of the defence and if the amendments are now allowed, the Plaintiff must be recalled to deny such averments and in that case, a cross -examination would also be necessary and the matter would be unnecessarily delayed. Shri Ajit Kumar contended that if a factual plea is taken by the defence, it is for the defence to prove it and he referred to Order XVIII, Rule 3 of the Code of Civil Procedure to say that the responsibility of proving the same lay with the defence and the Plaintiff was not to adduce evidence on those points.
(2.) THE learned Counsel also relied on case laws in support of their contentions. Shri Sinha referred to a decision of the Supreme Court as in : AIR 1977 SC 680. In the case before the Supreme Court also, there had been an application for amendment of the written statement by substituting certain paragraphs. The amendment proposed to introduce entirely a different new case seeking to displace the Plaintiff completely from admissions made by the Defendants in the original written statement. The application was rejected. Shri Sinha also relied on a decision of the Allahabad High Court in the case in : AIR 1978 All 46. The High Court in this case rejected an application for amendment of the written statement at a stage after the closure of the Plaintiffs evidence. The amendment was sought on the ground that certain talk went between the Plaintiff and the Defendant. The trial court disbelieved the story and rejected the application for amendment. The High Court confirmed the order of the trial court.
(3.) THE amendments as proposed indicate that the defence wants to introduce a question regarding proper valuation of the claim. Paragraph 4 of the original written statement has been proposed to be elaborated by addition of certain averments challenging the Will in question as forged, fabricated and manufactured and giving details for such challenge. The amendment in paragraph 5 is not of much importance. Paragraph 6 of the written statement was proposed to be amended by challenging the theory of adoption. The amendment in paragraph 7 dealt with this question but on some other ground. The amendment in paragraph 8 again sought to set up the WILL as forged, fabricated and manufactured in collusion with certain persons named therein. The other proposed amendments also cover the right of the Respondent to the property of the deceased and the last proposed amendment deals with a question of residence of Shri Manohar Lal and his migration to U.S.A.