LAL SINGH Vs. GURDIAL SINGH

JUDGEMENT

(1.) Gurdial Singh plaintiff filed suit for joint possession against Lal Singh claiming half share of the land measuring 47 kanal 3 marla as recorded in jamabandi for 1984-85 of village Bahona, on the allegations that land measuring 47 kanal 3 marla was owned by one Dal Singh son of Bika Singh who was father of Gurdial singh and Lal Singh. Defendant Lal Singh contested the suit urging that he is the son of Dal Singh while Gurdial Singh was not the son of Dal Singh. Gurdial Singh is not recorded as son of Dal Singh in the revenue record. It was further urged that he and Nihal Kaur are the only children of Dal Singh. Gurdial Singh is not the off spring of Dal Singh. He is shown as pichhlag of Dal Singh in the revenue record.

(2.) Plaintiff's suit was decreed by the Subordinate judge IInd class Moga Lal Singh went in appeal to the District Court at Faridkot.

(3.) Along with the memo of appeal, Lal Singh put in an application under Order 6 Rule 17 CPC whereby prayed for leave of the Court to permit him to amend his written statement so that he could plead that Dal Singh has executed registered Will dated 13.5.1975 in his favour and that mutation No. 5725 had been sanctioned in his favour on the strength of that Will to the exclusion of Gurdial Singh on account of love and affection for him and in lieu of the services being rendered by him (Lal Singh) to testator Dal Singh. It was alleged in the application for amendment that he had proved this Will by examining 'Head Registration Clerk and one Atma Singh Lambardar the attesting witness of the said Will and that the Court refused into to take this evidence into account saying that the Will in question could not be looked into as the same was not pleaded in the written statement. It was alleged that non-consideration of the evidence led by him on a mere technical ground has brought about serious miscarriage of justice. It was further alleged that he had shown the certified copy of the mutation as well as the certified copy of the Will to his counsel in the trial Court but he failed to plead this fact in the written statement due to sheer omission/inadvertence. This application was opposed by Gurdial Singh saying that at such a belated stage when the trial is over, this amendment should not be allowed as if this amendment is allowed, that will work injustice to him. No amendment should be allowed which has the effect of working injustice to the other party which cannot be compensated for by costs with the allowing of amendment.