MOHAR PAL Vs. SMT. SUNEHRA AND ORS.

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 3.3.2001 passed by the Civil Judge (Junior Division), Faridabad dismissing the application of the defendant -petitioner seeking amendment of its written statement by adding para 6(A). The Civil Judge while dismissing the application has recorded the following reason:

(2.) BRIEF facts which lead to the filing of the present revision petition may first be noticed. Bhulli had two sons Mohar Pal, defendant -petitioner and Chandan Singh. Chandan Singh died about 20 years ago and Smt. Sunehra, plaintiff -respondent No. 1 is his widow and Murti Devi, plaintiff -respondent No. 2 is his daughter. On 10.8.1993, Bhulli allegedly suffered a decree in favour of Mohar Pal, defendant -petitioner on the basis of a family settlement. The afore -mentioned decree has been challenged by the widow and daughter of Chandan Singh, plaintiff -respondent Nos.I and 2 in Civil Suit No. 432 filed on 10.6.1994 on the ground that the decree was obtained by practising fraud on the Court and also on the ground that the land was ancestral in character, therefore, Bhulli could not have suffered a consent decree. On that count, the decree is sought to be set aside, In the afore -mentioned suit, Bhulli was impleaded as defendant. In his written statement Bhulli took the stand that the averment made in the suit that the defendant -petitioner Mohar Pal played a fraud upon him was correct. According to the written statement Bhulli has stated to defendant -petitioner that he would give half share in the total land to the defendant -petitioner and the other half share would be given to the plaintiff -respondent. Therefore, Bhulli accepted the allegation that the decree has been obtained by fraud as they never agreed to give away the whole suit land to the defendant -petitioner. He has also supported the stand of the plaintiff -respondent that the whole of the suit land was ancestral property. He denied that both his sons had by birth acquired any interest in the suit land. The possession to the plaintiff -respondent to the extent of half share of the land. The defendant -petitioner has filed a separate written statement contesting the suit on all counts.

(3.) THE amendment has been contested by the plaintiff -respondents by raising the plea that after the death of Bhuili, the plaintiff -respondent filed an application for bringing on record the legal representatives of Bhuili, deceased, and there was no mention of the Will in the reply to the afore mentioned application. According to the learned counsel for the plaintiff -respondent that was the first opportunity available to the defendant -petitioner when he could have set up the Will. The application of the plaintiff -respondent was allowed vide order dated 17.1.1997. It is, therefore, claimed that the defendant -petitioner is estopped from setting up the Will at this stage by seeking amendment under Order 6 Rule 17 of the Code in his written statement. The Civil Judge has dismissed the application vide impugned order dated 3.3.2001. Feeling aggrieved by the said order, the defendant -petitioner has filed the present revision petition.