SHAKUNTALA J GUJAR Vs. DILIP R PAWAR

JUDGEMENT

(1.) THIS writ petition takes exception to the order passed by the Civil Judge, S. D. , Alibag dated 15-10-1993 below Exh. 33 in Special Civil Suit No. 98 of 1990.

(2.) BY application below Exh. 33 the petitioner herein prayed that the petitioner be permitted to carry out the proposed amendment to the plaint as set out in the application. The petitioner, besides the relief claimed in the plaint for partition, now sought further relief that the Will executed by the deceased is void and illegal. The Court below, by the impugned order, rejected the application preferred by the petitioner and refused to permit amendment as sought mainly on the ground that permitting the petitioner to carry out the amendment would amount to allowing him to introduce new cause of action and further that the claim set up by way of proposed amendment is barred by time. It is this decision which has been taken exception to in the present writ petition.

(3.) AFTER having considered the relevant pleadings and the reasoning recorded by the Court below I find no reason to take a different view that the proposed amendment was time barred. Inasmuch as, the factum of existence of the Will executed by the deceased was known to the petitioner much prior April 1990; and in that context the petitioner had made an application to the Mamlatdar on 19-4-1990. Besides the said application the petitioner also made an application to the Tahasildar on 21-4-1990, where he clearly asserts that deceased has executed a Will which has been registered with the Sub Registrar. In spite of this knowledge, the petitioner did not think it appropriate to make a reference about the same in the plaint, as filed before the trial Court. It is for the first time, by way of amendment application, filed on 9-7-1993, that the petitioner wanted the Court to accept his stand that he acquired the knowledge about the existence of the Will only when the written statement came to be filed by the respondent on 15-12-1990. The plea advanced on behalf of the petitioner, in my view, is clearly belied from the documents placed on record; particularly the letters sent by the petitioner to the concerned authorities would indicate that prior to April 1990 the petitioner was aware about the existence of the Will. If this finding, as recorded by the Court below, cannot be taken exception to, then inevitably the proposed amendment, by way of application below Exh. 33 dated 19-7-1993, would be time barred.