HARISH CHANDRA Vs. GULAB DEVI

JUDGEMENT

(1.) With the consent of the learned counsel for the parties, the writ petition is being decided finally at the admission stage.

(2.) The petitioner-plaintiff has filed this writ petition challenging the order dated 17.01.2014, passed by the Additional District Judge No.2, Jaipur District, Jaipur (hereinafter referred to as 'the trial court') in civil suit No.23/1997, whereby the trial court has dismissed the application of the petitioner-plaintiff seeking amendment in the plaint under Order VI Rule 17 of CPC.

(3.) In the instant case, it appears that the petitioner-plaintiff and the respondent No.2-defendant No.2, are the real brothers. The suit has been filed by the petitioner-plaintiff against the respondents-defendants seeking the possession, permanent injunction and mesne profits in respect of the suit property, alleging inter alia that the suit property was bequeathed by the father of the petitioner-plaintiff by way of will dated 11.06.1984 in his favour. The father of the petitioner-plaintiff died on 09.04.1985. It is also alleged that in the year 1981, the petitioner-plaintiff and his father had filed a suit for partition against the respondent No.2-defendant No.2 in respect of another property, in which the preliminary decree was prepared, and that the respondent No.2-defendant No.2 had also filed a suit for partition in the year 1988 against his family members and the petitioner-plaintiff. According to the petitioner-plaintiff, the suit property belonged to him, as per the will executed by his father in his favour, however the respondent No.2-defendant No.2 had executed the sale-deed dated 21.11.1994 in favour of the respondent No.1-defendant No.1, about which the petitioner-plaintiff came to know on 15.04.1995, when the respondent No.1-defendant No.1 was trying to put construction of a wall on the suit plot. It appears that the said suit was resisted by the respondents-defendants by filing the separate written statements and after framing of the issues by the trial court, the petitioner-plaintiff had also led his evidence. At this stage, the petitioner-plaintiff sought amendment in the plaint by submitting the application, praying to amend the relief clause in the plaint by incorporating the prayer for cancellation of the sale-deed dated 21.11.1994 executed by the respondent No.2-defendant No.2 in favour of the respondent No.1-defendant No.1. The said application was resisted by the respondents-defendants by filing a reply thereto raising various contentions. The trial court, vide its impugned order dated 17.01.2014, has dismissed the said application. Being aggrieved of the same, the petitioner-plaintiff has filed the present petition.