Charan Kaur and Another vs Pritam Singh and Others

Jasbir Singh, J.—Vide order under challenge, application of the petitioners, to amend their written statement, was dismissed.

It is apparent from the records that initially when suit was filed, the petitioners were not a party to the same. Suit was filed against Sarwan Singh,

their predecessor in interest. Suit was dismissed. During pendency of appeal, Sarwan Singh died and in his place, petitioners alongwith

respondents Nos.2 to 4 were brought on record as his legal representatives. During pendency of appeal, respondent No.1 Pritam Singh filed an

application for amendment of his plaint, which, after contest, was allowed on 22.4.1996. Consequent thereto, respondent No. 1 filed amended

plaint on 2.5.1996, to which written statement was filed by the petitioners and legal heirs of deceased Sarwan Singh on 23.5.1996. Appeal was

accepted and remanded vide order dated 30.8.1996.

During pendency of the suit, petitioners moved this application for amendment, wherein they prayed that they be allowed to incorporate

amendments in paras No.2 and 2D of their written statement. In para No.2 of the amended written statement, they intended to take an objection

that the parties are agriculturists Jat Sikhs of Punjab and before coming into force of Hindu Succession Act 1956 they were governed by the

customary law in the matter of succession and alienation. In para 2D, they intended to take a defence that the deceased Sarwan Singh had

executed a registered Will in favour of his son Tota Singh on 15.11.1989, which was registered on 31.1.1990. Due to some gap of communication

with their counsel, they failed to incorporate this fact when written statement was filed by them to the amended plaint. Application for amendment

was dismissed. Hence, this revision petition.

This Court feels that so far as amendment in para No.2 of the written statement is concerned, that cannot be allowed at this stage. The said plea

that the parties were being governed by customs before coming into existence of Hindu Succession Act, was very much available to petitioners

when written statement was filed earlier. So far as amendment in para 2D of the written statement is concerned, by the said amendment, the

petitioners intended to bring on record a fact that registered Will was executed in favour of Tola Singh, their predecessor, by Sarwan Singh

deceased. This Court feels that the document, which the petitioners now intends to bring on record, is registered one and as such, its authenticity

cannot be doubted at this stage. It will be open to the trial Court to look into validity of the Will as per law, during the trial. This Court feels that the

existence of the Will was very much within the notice of respondent No. I as he had moved one application earlier with a prayer that the

respondents be asked to produce on record the said Will. This Court feels that in the interest of justice and for proper adjudication of lis between

the parties, it is necessary that the petitioners be allowed to incorporate factum regarding execution of Will by Sarwan Singh in favour of Tota

Singh by amending their written statement. Accordingly, this revision petition is allowed, order under challenge, is set aside and the petitioners are

allowed to amend their written statement and incorporate the plea which they intended to add in para No.2D of the written statement. Order

passed is subject to payment of costs of Rs.3,000/- to be paid by the petitioners to the respondents before the trial Court on the next date of

hearing.

Parties are directed to appear before trial Court on 14.2.2006.