INDERJEET SINGH Vs. RAJINDER SINGH

JUDGEMENT

(1.) Instant petition filed under Art. 227 of the Constitution of India, is directed against order dated 17.9.2018 passed by learned Civil Judge, Court No.2, Paonta Sahib, District Sirmaur, Himachal Pradesh, whereby an application having been filed by the petitioners-plaintiffs (hereinafter, 'plaintiffs') under Order VI, rule 17 CPC being CMA No. 179/6 of 2018, praying therein for amendment of plaint, came to be dismissed.

(2.) For having a bird's eye view, necessary facts as emerge from the record are that the plaintiffs filed a suit i.e. Civil Suit No. 2818/2013 (Annexure P-2) for declaration that the plaintiffs and respondents-defendants (hereinafter, 'defendants') are co-owners in joint possession of the land denoted by Khewat Khatauni No. 380/660, Khasra No. 784, measuring 38.25 square metre and Khasra No. 1557, measuring 256.20 square metres, total land measuring 294.45 square metre situate in Mauza Muhal Up Sampada Badri Nagar, Tehsil Paonta Sahib, District Sirmaur, Himachal Pradesh (hereinafter, 'suit land') and that the Will No. 197/2009 registered on 10.7.2009 is illegal, result of fraud, misrepresentation and duress and not binding upon plaintiffs.

(3.) Suit having been filed by the plaintiffs came to be resisted by defendants by filing written statement (Annexure P-3), taking preliminary objections of maintainability, cause of action, suppression of material facts and estoppel. Most importantly, defendants, while totally denying the case of the plaintiffs on merit, also disclosed factum with regard to existence of second Will executed by late Smt. Lajwanti in their favour. Record reveals that though the plaintiff filed replication on 12.8.2015 but at that time, no prayer, if any, came to be made on their behalf for amendment of plaint on account of disclosure of second Will. After three years of filing of replication, plaintiffs by way of application under Order VI, rule 17 CPC (Annexure P-4) in question, prayed for amendment of plaint, averring therein that the plaintiffs and defendants are real brothers and sisters and their parents had made an arrangement amongst all the four brothers, who are in separate mess and residence amongst themselves. Plaintiffs averred that after death of their mother, they approached Patwari Halqua for entering mutation of inheritance amongst survivors but there it transpired that defendant No.1 has presented Will allegedly executed by late Smt. Lajwanti bequeathing suit property in their favour. Plaintiffs further averred that immediately they took steps and after obtaining copy of second Will, engaged Shri N.L. Parwal, Advocate, who assured them that he would take necessary steps for inclusion of second Will in the suit. Plaintiffs also averred that they remained under bona fide belief that the suit included both the properties but it was only when counsel was preparing case for evidence with regard to second Will, factum with regard to non-inclusion of second Will in the suit came to the fore. Plaintiffs further averred that they became suspicious and engaged one H.S. Shah, Advocate, who disclosed that second Will qua property of Shamsherpur, Paonta Sahib, has not been included in the suit, as such, they engaged Shri Ajay Chauhan, Advocate, who advised them to file instant application under Order VI, rule 17 CPC praying therein for amendment of plaint.