Dev Raj and Others vs Tarsem Lal and Others

Paramjeet Singh, J.—Present revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 03.08.2007 and review order dated 03.01.2008 passed by learned Civil Judge (Junior Division), Sunam, whereby joint application moved by the petitioners plaintiffs under Order 6 Rule 17 read with Order 1 Rule 10 of the Code of Civil Procedure, has been dismissed. Shorn of unnecessary details, the facts relevant for disposal of the present petition are to the effect that petitioners-plaintiffs filed a suit for declaration on the basis of a Will dated 17.10.1996 claiming inheritance of one Ram Chand. The application for amendment has been filed primarily on the ground that prior to the Will dated 17.10.1996, two more Wills dated 09.07.1980 and 30.11.1995 had also been executed by deceased Ram Chand. Will dated 09.07.1980 was executed in favour of Bhagwan Ram-petitioner No. 3 and Will dated 30.11.1995 in favour of Des Raj - petitioner No. 2, whereas Will dated 17.10.1996 on the basis of which inheritance has been claimed in favour of all the three petitioners-plaintiffs. In the application for amendment, another prayer for impleading Parmeshwari Devi daughter of Udey Ram and Bhagat Ram son of Udey Ram as defendant Nos. 8 and 9 has been made. The learned trial Court vide order dated 03.08.2007, dismissed the application. Thereafter, the petitioners plaintiffs filed review application for recalling order dated 03.08.2007 which has also been dismissed by the learned trial Court vide order dated 03.01.2008. Hence, this revision petition.

I have heard learned counsel for the parties and perused the record.

So far as the amendment is concerned, learned counsel for the petitioners contended that amendment is only to the effect that deceased Ram Chand had executed two Wills dated 09.07.1980 and 30.11.1995 prior to Will dated 17.10.1996. Wills dated 09.07.1980 and 30.11.1995 have been executed in favour of Bhagwan Ram and Des Raj respectively. This fact has come to the notice of the petitioners-plaintiffs subsequently. Amendment sought is only in the nature of clarification of the pleadings and will be necessary for the determination of the real controversy. Learned counsel for the petitioners further states that trial Court has not taken this fact into consideration, rather the impugned order is cryptic. The trial Court has only dealt with the part of the application under Order 1 Rule 10 CPC and the amendment has been declined by saying that after framing of issues and commencement of the trial, amendment of the pleadings cannot be allowed under the amended provisions of C.P.C. Learned counsel for the petitioners further contended that suit was filed much prior to coming of the amendment in C.P.C. Learned counsel further contends that since the suit was filed prior to the amendment in C.P.C. and if the amendment is necessary for just decision of the case, the same can still be allowed in view of the provisions of the amended Code of Civil Procedure, therefore, the learned trial Court has committed an error in law.

Learned counsel for the respondents has vehemently opposed the contentions raised by the learned counsel for the petitioners and contended that prior to the filing of the instant amendment application, the petitioners-plaintiffs had already filed an amendment application on 16.09.2002 which was allowed and the plaint was allowed to be amended. Learned counsel for the respondents further states that the respondents have mentioned about the earlier Wills in their written statement, but no replication was filed by the petitioners-plaintiffs to the written statement. When the case was at the fag end and arguments were being heard, thereafter, amendment application has been made. The amendment sought is mala fide and just to delay the case.

I have considered the rival contentions of the learned counsel for the parties and perused the record.

So far as the part of the application under Order 1 Rule 10 CPC is concerned, this is with regard to impleading the LRs of deceased Ram Chand, namely, Parmeshwari Devi and Bhagat Ram. Parmeshwari Devi and Bhagat Ram are sister and brother of the deceased Ram Chand respectively. Both are stated to be dead. Parmeshwari Devi had died on 19.09.2010 and Bhagat Ram had died on 06.06.2009. This fact has not been denied by the learned counsel for the petitioners. In view of this, part of the application qua Order 1 Rule 10 CPC has been rendered infructuous. The petitioners will be at liberty to move in accordance with law. Reverting back to the contentions raised with regard to the amendment, this Court is of the view that amendment is necessary for just decision of the case. Though, the amendment application has been filed at a belated stage, but is for bringing on record the pleadings with respect to the earlier Wills executed by deceased Ram Chand in favour of Bhagwan Ram and Des Raj, will not materially change the nature of the suit, rather apparently appears relevant to show the factum that the executant was having the intention to execute the Will in favour of the petitioners, so that property may devolve upon them. The veracity of these things will be taken care of by the trial Court. However, the petitioners will be only entitled to lead evidence with regard to proving the aforesaid two Wills. Impugned orders are set aside to that extent.

Instant revision petition is disposed of in the above terms.