DIMPLE CHOPRA Vs. VISHAL SWARA AND ANR

JUDGEMENT

(1.) This Revision Petition is directed against the order dated 6.9.2008 passed by Additional District Judge, Gurgaon vide which an application filed by the petitioner/respondent No. 2 in the probate case for amendment of written statement under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short CPC) has been dismissed.

(2.) Controversy in this case has arisen in a probate petition filed at the instance of respondent No. 1 (Vishal Swara) when the petitioner filed an application under Order 6 Rule 17 of the CPC in order to add certain facts immediately after sub para X of para No. 2 of the preliminary objections. It is alleged in the application that petitioner had filed a suit for declaration, partition, possession, rendition of accounts and perpetual injunction against respondent No. 1, which is pending in Tis Hazari Courts at Delhi. It is also alleged that at the time of filing reply to the probate petition, petitioner had narrated all the relevant facts to her Advocate and handed over necessary documents for the preparation of written statement and had categorically instructed that the pleadings as well as documents filed by her in the Civil Suit, now pending in Tis Hazari Courts at Delhi, are to be filed along with written statement in the probate case but despite that Advocate, who had prepared the written statement on 20.5.2005 did not take the plea as instructed and the petitioner could not get an opportunity to go through the contents of the written statement before filing it in the Court. Therefore, she alleges that she was unaware as to what are the facts and documents filed with the written statement. It is further alleged that petitioner being not satisfied with her earlier Advocate had changed him and had found that the plea which is now sought to be taken by way of amendment is conspicuously absent in the written statement already filed. In this background the present application was filed for the purpose of making certain averments in sub para X of para No. 2 of the preliminary objections of the earlier written statement. In reply to the application, it is alleged by respondent No. 1 that the averments sought to be taken by way of amendment is already there in the written statement in different paragraphs. The attempt is basically to delay the proceedings of the probate petition and to open a pendora box for the purpose of de novo trial although as many as six witnesses have already been examined at the instance of the probate petitioner/respondent No. 1.

(3.) The learned trial Court, while dismissing the application for amendment has observed that all the facts which are sought to be incorporated in the written statement by way of amendment were within the knowledge and notice of the petitioner herein, who could not escape from her responsibility of reading the written statement before filing it in the Court and blame her Advocate. It was also observed that the amendment is sought at a belated stage, therefore, it could not be allowed.