GOPAL SINGH Vs. CHANDER SINGH & OTHERS

JUDGEMENT

(1.) This revision arises from the order dated Feb. 26, 1996 of the learned Additional District Judge No. 5, Jaipur City, whereby the application under Order 6, Rule 17 Civil Procedure Code. moved by the defendant petitioner (for short the defendant) for amending the written statement was rejected.

(2.) Brief facts are required to be set out at the out set. The plaintiff non-petitioner (for short the plaintiff) instituted a suit for partition between herself and Shri Hari Singh represented by his legal representatives in respect of several properties alleged to have been left by Shri Berisal Singh, husband of the plaintiff. It was pleaded by the plaintiff that the property belongs to Sint. Bhanwar Bai, who was grand-mother of the defendant. However, till recently, the plaintiff as well as the defendant were under the impression that the property came to Smt. Bhanwar Bai under will dated 14.5.1997 executed by Shri Berisal Singh. Before the learned Trial Court, the suit is still at the stage of service of some of the defendants and for filing written statement. The defendant moved an application under Order 6 Rule 17 Civil Procedure Code. seeking amendment of the written statement filed by him by adding necessary averments in respect of existing para 22 of the written statement. It was averred that such averment regarding prior possession and right over the property were already there in paras 15 and 22 of the written statement but looking to some old document of Samvat 1974 the defendant came to know for the first time that late Shri Berisal Singh had exeucted document in Samvat 1974 whereby the property was given to Smt. Bhanwar Bai for her maintenance. This document was of a date much prior to the date of will. Therefore, the amendment was necessary to further clarify and amplify the averments. The learned Trial Court dismissed the application vide the impugned order.

(3.) Mr. N.K. Maloo, learned counsel appearing for the defendant criticised the impugned order and averred that the observations made in the impugned order are made wholly without basis in as much as the amendment itself has been sought on the ground of discovery of document in Aug., 1993 after filing of the written statement on 8.1.1991 and therefore, it was not possible for the defendant to incorporate the averments relating to the said document Mr. Maloo learned counsel further contended that the Trial Court should not have gone into the merits of the case while deciding the application for amendment. If the amendment is necessary to decide the real issue between the parties the amendment should be granted. Mr. Maloo further submitted that in the case on hand the plaintiff filed amended plaint on Oct. 31, 1992 i.e. after filing the original written statement on Jan. 8, 1991, therefore the defendant has full right to file amended written statement or fresh written statement even if the amendment in the plaint is formal in nature. Reliance was placed on N.K. Jain Vs. Kanhaiyalal (1990 (1) RLR 41) , Ajeet Kumar Jain Vs. Smt. Urmila Sharma (1996 (1) Western Law Cases (Raj.) 514 , Abdul Rahim Vs. Abdul Jabbar (AIR 1950 Calcutta 379) , Ramchandra Vs. Mahendra Singh (AIR 1988 Rajasthan 4) , Usman Vs. Sitaram (1992 (2) RLW 506) , Akshaya Restraurant Vs. Anjanappa and another (AIR 1995 Supreme Court 1498) and Radhika Devi Vs. Bajrangi Singh and others (AIR 1996 Supreme Court 2358).