SAJJAN SINGH Vs. BUNNI KAUR

JUDGEMENT

(1.) Heard learned counsel for the petitioners and learned counsel for the respondents 1st set on the point of admission and I intend to dispose of the present petition at the stage of admission itself.

(2.) The instant petition has been filed by the petitioners/plaintiffs for quashing the order dtd. 9/10/2018 passed by the learned Additional District Judge-I, Chapra in Probate Case No. 08 of 2011. In the said case, an amendment petition dtd. 8/8/2018 has been filed to make certain amendments in the probate petition which was objected by the respondents 1st set who claimed that the probate petition was barred by limitation. The respondents 1st set also objected the amendment petition on the ground of belated filing and also on the ground that the petition was hit by Sec. 11 of the Code of Civil Procedure (hereinafter referred to as the 'Code') as a petition with same prayer was earlier filed and withdrawn. Further, challenge was on the points that the facts were known to the petitioners still the amendment was not preferred earlier and merits of the amendments were also challenged. The learned trial court rejected the amendment petition of the petitioners vide order dtd. 9/10/2018 which is under challenge before this Court.

(3.) Learned counsel for the petitioners submits that the learned trial court adopted erroneous approach and went into the merits of the case which was not permissible at the stage of deciding the petition of amendment. The learned trial court did not consider the fact that trial is still at the initial stage and the amendment is not going to cause prejudice to any party. Learned counsel further submits that the learned trial court mainly rejected the petition on the ground that except for two petitioners, other petitioners did not put their signatures on the petition for amendment and also on the ground that the amendment petition has been filed belatedly after the issue of limitation was raised by other side in its objection. However, a Division Bench of this Court in the case of Bibi Asghari & Anr. Vs. Md. Kasim & Ors., reported in AIR (38) 1951 Patna 323, has observed in paragraph no.4 that the court does not lose its jurisdiction if some of the plaintiffs did not present the plaint if the suit was filed with their knowledge and authority. Thus, if some of the plaintiffs sign and verify the petition it would suffice for the purpose of proceeding with the petition. Learned counsel further submits that the amendment is quite formal in nature. One of the amendments is merely explanation for bringing the probate petition so late in time mentioning loss of the certified copy of the original Will being the reason. Another amendment is adding the prayer part in the probate petition since there was an inadvertent omission of the prayer clause in the petition filed for the probate of the Will. Learned counsel further submits that the Hon'ble Supreme Court in the case of Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited & Anr., reported in AIR 2022 SC 4256 in paragraph no. 70 has given certain guidelines and has held that the amendments are to be liberally allowed unless it is mala fide or is time barred or would change the nature of the suit. Learned counsel further submits that the proposed amendments do not change the nature of the suit and have been moved before the commencement of the trial and, hence, the learned trial court committed an error of jurisdiction in rejecting the amendment petition and passed the impugned order which is not sustainable.