Gaurav Lal vs Sagar Chand and Others

L.N. Mittal, J.—Defendant no. 1 Gaurav Lal has filed this revision petition under Article 227 of the Constitution of India impugning order dated 24.11.2011 Annexure P/1 passed by the trial court thereby dismissing application for secondary evidence and also dismissing application for amendment of written statement filed by defendant no. 1-petitioner. Respondents no. 1 and 2/plaintiffs have filed suit against petitioner and proforma respondents no. 3 to 6 as defendants for partition of four houses No. 878 and 885 to 887 vide plaint Annexure P/2. Defendants no. 1 and 2 in their written statement Annexure P/3 inter alia pleaded that house no. 887 was bequeathed by their grand mother Durga Devi in favour of defendant no. 1 vide Will dated 14.10.1951 whereas house no. 885 was bequeathed by their grand-father Ram Lal in favour of defendant no. 1 vide Will dated 14.10.1951 and accordingly, defendant no. 1 is owner in possession of both the said houses.

In application for amendment of written statement, defendant no. 1 alleged that Will by Durga Devi regarding house no. 887 was in favour of both defendant no. 1 and plaintiff no. 1 and written statement was sought to be amended to this effect. In the other application for secondary evidence, defendant no. 1 alleged that he was in Air Force and therefore, both the aforesaid original Wills were left with the plaintiffs who have, however, failed to produce the same inspite of application filed by defendant no. 1.

The plaintiffs opposed the aforesaid applications.

Learned trial court vide impugned order dated 24.11.2011 Annexure P/1 dismissed both the aforesaid applications filed by defendant no. 1 who has, therefore, filed this revision petition to challenge the said order.

I have heard counsel for the parties and perused the case file.

In so far as application for amendment of written statement is concerned, the same has been rightly dismissed by the trial court because the same was filed long after commencement of trial and even after conclusion of evidence by the plaintiffs. In view of proviso to Order 6 Rule 17 of the Code of Civil Procedure, amendment of pleading cannot be allowed after commencement of trial unless the party seeking amendment could not have raised the matter before commencement of trial inspite of due diligence. In the instant case, defendant no. 1-petitioner claims to be having photostat copies of the Wills in question. Consequently, it cannot be said that inspite of exercise of due diligence, defendant no. 1 could not have raised the plea (which is now sought to be taken by amendment of written statement) before commencement of trial. Consequently, impugned order to the extent of dismissing application for amendment of written statement does not suffer from perversity, illegality or jurisdictional error warranting interference by this court in exercise of revisional power under Article 227 of the Constitution of India.

As regards application for secondary evidence, counsel for the petitioner reiterated that original Wills were in possession of the plaintiffs and therefore, defendant no. 1-petitioner should be permitted to lead secondary evidence thereof. On the other hand, counsel for respondents contended that even existence of the Wills in question has not been proved by the petitioner and therefore, secondary evidence thereof cannot be permitted. It was pointed out that it was not pleaded in the written statement that original Wills were in possession of the plaintiffs.

I have carefully considered the matter. Defendant no. 1 has to prove existence, execution and loss of the Wills in question so as to enable him to lead secondary evidence thereof. However, he can prove the existence, execution and loss of the Wills only if he is permitted to do so. Consequently, permission for leading secondary evidence can be granted conditionally to defendant no. 1-petitioner subject to proof of existence, execution and loss of the Wills. Impugned order of the trial court, therefore, suffers from illegality and jurisdictional error in declining application of defendant no. 1 for secondary evidence.

As a necessary consequence of the discussion aforesaid, the instant revision petition is allowed partly. Impugned order passed by the trial court to the extent of dismissing application of defendant no. 1 for amendment of written statement is affirmed. However, impugned order Annexure P/1 passed by the trial court to the extent of dismissing application of defendant no. 1-petitioner for permission to lead secondary evidence of the two Wills in question is set aside and defendant no. 1 is permitted to lead secondary evidence of the said Wills subject to all just exceptions and subject to proof of existence, execution and loss of the said Wills. Since the suit is of the year 2005, the trial court is directed to decide the suit in accordance with law as expeditiously as possible keeping in view its docket.