DEV RAJ Vs. TARSEM LAL

JUDGEMENT

(1.) Present revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 03.08.2007 and review order dated 03.01.2008 passed by learned Civil Judge (Junior Division), Sunam, whereby joint application moved by the petitioners plaintiffs under Order 6 Rule 17 read with Order 1 Rule 10 of the Code of Civil Procedure, has been dismissed. Shorn of unnecessary details, the facts relevant for disposal of the present petition are to the effect that petitioners-plaintiffs filed a suit for declaration on the basis of a Will dated 17.10.1996 claiming inheritance of one Ram Chand. The application for amendment has been filed primarily on the ground that prior to the Will dated 17.10.1996, two more Wills dated 09.07.1980 and 30.11.1995 had also been executed by deceased Ram Chand. Will dated 09.07.1980 was executed in favour of Bhagwan Ram-petitioner No. 3 and Will dated 30.11.1995 in favour of Des Raj - petitioner No. 2, whereas Will dated 17.10.1996 on the basis of which inheritance has been claimed in favour of all the three petitioners-plaintiffs. In the application for amendment, another prayer for impleading Parmeshwari Devi daughter of Udey Ram and Bhagat Ram son of Udey Ram as defendant Nos. 8 and 9 has been made. The learned trial Court vide order dated 03.08.2007, dismissed the application. Thereafter, the petitioners plaintiffs filed review application for recalling order dated 03.08.2007 which has also been dismissed by the learned trial Court vide order dated 03.01.2008. Hence, this revision petition.

(2.) I have heard learned counsel for the parties and perused the record.

(3.) So far as the amendment is concerned, learned counsel for the petitioners contended that amendment is only to the effect that deceased Ram Chand had executed two Wills dated 09.07.1980 and 30.11.1995 prior to Will dated 17.10.1996. Wills dated 09.07.1980 and 30.11.1995 have been executed in favour of Bhagwan Ram and Des Raj respectively. This fact has come to the notice of the petitioners-plaintiffs subsequently. Amendment sought is only in the nature of clarification of the pleadings and will be necessary for the determination of the real controversy. Learned counsel for the petitioners further states that trial Court has not taken this fact into consideration, rather the impugned order is cryptic. The trial Court has only dealt with the part of the application under Order 1 Rule 10 CPC and the amendment has been declined by saying that after framing of issues and commencement of the trial, amendment of the pleadings cannot be allowed under the amended provisions of C.P.C. Learned counsel for the petitioners further contended that suit was filed much prior to coming of the amendment in C.P.C. Learned counsel further contends that since the suit was filed prior to the amendment in C.P.C. and if the amendment is necessary for just decision of the case, the same can still be allowed in view of the provisions of the amended Code of Civil Procedure, therefore, the learned trial Court has committed an error in law.