ELLORA SADHUKHAN Vs. TAPAN KUMAR SAHA ROY

JUDGEMENT

(1.) The petitioner herein being aggrieved by the order no. 9 dtd. 12/10/2018 passed by the learned Civil Judge (Senior Division) 2nd Court Barasat, North 24 Parganas in T.S. No. 178 of 2017 has preferred this application under article 227 of the Constitution of India. Petitioner contended that the petitioner is the married daughter and executrix of her mother's last will which was duly registered on 13/3/2014 bequeathing the entire suit building in favour of petitioner and her brother. Petitioner's further case is that after the death of testatrix they have initiated probate proceeding which is pending before this Court.

(2.) The petitioner instituted aforesaid T.S. no. 178 of 2017 seeking eviction of the opposite party/defendants along with other reliefs as stated in the plaint. Petitioner's further case is that the points to be decided in the aforesaid suit, in short, is about petitioners claim of right to protect 'A' schedule property until the grant of probate and the question involving eviction of opposite parties/defendants from the suit property holding them rank trespassers. In the plaint plaintiff/petitioner alleged that the defendant no.1 is in illegal possession of two shop rooms in the suit building and it is her further case that neither the mother of plaintiff nor plaintiff herself has ever entered into any agreement with the defendants.

(3.) The defendant no.1 entered appearance in the said suit and filed written statement wherein she has denied all the material allegations made in the plaint. Petitioners further case is that after filing of the written statement, the defendant no.1 filed one application under order VI rule 17 of the Civil Procedure Code (CPC) for amendment of the written statement. By the proposed amendment defendant no.1 now tried to incorporate in their written statement a new fact that a Will was executed by the same testatrix in their favour on 22/5/2006 which was unregistered. The plaintiff petitioner herein filed written objection against the said amendment application. However court below after hearing both the parties has been pleased to allow the defendants prayer for amendment of the written statement.