SANTI Vs. SUMANU

JUDGEMENT

(1.) PETITIONER is the plaintiff in the trial Court. He has instituted the suit for declaration and permanent prohibitory injunction against deceased -defendant Paras Ram. Deceased Paras Ram died during the pendency of the suit on 3rd June, 2007. The plaintiff had taken consequential steps and Smt. Sumanu, widow of deceased -defendant, was substituted as his legal representative in the suit. Later on, plaintiff, however, came to know that the deceased Paras Ram had executed a will in favour of Smt. Sumanu, aforesaid, and one Sundru. Since Sumanu was already impleaded as defendant in the suit, being legal representative of deceased Paras Ram, therefore, plaintiff field a separate application under Order 1 Rule 10 read with Order 6 Rule 17 of the Civil Procedure Code, registered as CMA No. 45 -VI/2010 for impleadment of Sundru as defendant in the suit and also allow her to amend the plaint, challenging therein the will executed by deceased defendant Paras Ram in her favour and in favour of Sumanu. It is this application which has been dismissed vide the order impugned in this petition on the ground that plaintiff has failed to take due diligence.

(2.) IN this case, the learned trial Court has taken note of a suggestion put to the plaintiff on 31.7.2008 during the course of her cross examination that deceased Paras Ram had executed a will in the names of Sumanu, Sundru, Kuldeep Chand, Hemant and Bhupender and has observed in the impugned order that irrespective of acquired the knowledge of execution of the will on 31.7.2008, she failed to seek amendment in the plaint immediately thereafter in this behalf and as such, the application being belated, has been dismissed vide order impugned in this petition.

(3.) TRUE it is, that there is delay on the part of the plaintiff in seeking amendment in the plaint, however, the same could have been taken care of by allowing the amendment subject to payment of costs to the petitioners to compensate them.