BALWANT SINGH ETC Vs. HARBANS SINGH ETC

JUDGEMENT

(1.) This revision is directed against the order dated 28.9.1996 passed by the learned Additional Civil Judge (Senior Division), Patti. Vide the impugned order, the learned Judge allowed the application filed by the applicants-plaintiffs under Order 1 Rule 10, Order 6 Rule 17 of the Code of Civil Procedure.

(2.) A suit for declaration was filed by the plaintiffs to the effect that they are the owners in possession to the extent of 7/90 share of land in dispute alongwith other defendants at Village Barwala, Tehsil Patti, Distt. Amritsar, 1/2 share alongwith other defendants as per the shares stated in the plaint of the land in dispute situated at Village Khamba, Distt. Ferozepur and similarly to the extent of 1/5 share of land and plot mentioned in the plaint situated at District Rampur (UP) and East Patel Nagar, New Delhi, respectively alongwith other defendants. The suit was being contested by the defendants. During the pendency of the suit, the plaintiffs filed an application praying for amendment of the plaint and for impleading Balwinder Singh, Narinder Singh and Ranjit Kaur as parties in the array of defendants to the suit. The reason stated for filing of such application was that after filing of the suit the applicants-plaintiffs have come to know that the defendants are relying upon a Will allegedly executed by Kishan Singh in their favour. As such it has become necessary for the applicants to challenge the execution and validity of the Will because the Will is result of a fraud, misrepresentation and undue influence. Resultantly the applicants wish to amend the plaint in its title, in paragraphs No. 2 and 5 of the plaint to add the above narrated facts and to get the said defendants impleaded to the suit. The application was contested and the learned trial court vide the impugned judgment allowed the said application subject to payment of costs. This has given rise to the present revision.

(3.) It is contended by the learned counsel for the petitioners that the learned trial Court has committed an illegality and material irregularity by allowing the applications in question. It is further contended that on the one hand the applicants had admitted that the properties are joint properties, therefore, the suit could not include the self acquired properties of Kishan Singh and on the other hand the cause of action was a different and distinct one. Learned Counsel for the petitioners has relied upon the judgment of this Court in the case of Ishar and Ors. v. Sudesh Kumar and Anr., (1973)75 P.L.R. 323, to argue that no new case can be permitted to be introduced by way of amendment and he also relied upon the judgment of this court in the case of Krishan Lal v. Sudesh Kumari, (1998-1)118 P.L.R. 514, to contend that the defendants No. 5 to 7 could not be impleaded as parties to the suit.