Gurveen Kaur vs Balwant Kaur and Another

L.N. Mittal, J.—Plaintiff Gurveen Kaur has filed instant revision petition under Article 227 of the Constitution of India assailing order dated 16.4.2009, Annexure P/5, passed by learned Civil Judge (Junior Division), Ludhiana thereby allowing application Annexure P/3 moved by defendant-respondent No. 1 Balwant Kaur for amendment of written statement.

This is unfortunate litigation between mother and daughters. Petitioner and respondent No. 2 are daughters of respondent No. 1. The dispute relates to properties held by late Lt. Col. Shaminder Singh Grewal (father of petitioner and respondent No. 2 and husband of respondent No. 1). The petitioner-plaintiff being one of the three natural heirs of her deceased father wants 1/3rd share in the suit properties. However, case set up by defendant No. 1 in her written statement Annexure P/2 is that her deceased husband had executed registered Will dated 8.9.2003 in her favour and consequently she is owner in possession of the suit properties left by her husband.

Defendant No. 1 moved amendment application Annexure P/3 alleging that while searching old papers she has tumbled upon another original Will dated 3.11.1975 executed by her husband in her favour. The said Will was deposited by the testator with Army Headquarters as per Military Rules while the testator was in service. The Will was returned to the testator after his retirement vide letter dated 8.12.1992 by Senior Civilian Staff Officer. Accordingly defendant No. 1 sought to plead the said Will as well and to plead that in view of both the Wills she is owner in possession of the suit properties. The said amendment application has been allowed by the trial court.

I have heard learned Counsel for the parties and perused the case file.

Learned Counsel for the petitioner contended that trial in the suit had commenced and therefore, amendment of written statement could not be allowed after commencement of trial. The contention cannot be accepted. Even amended provision of Order 6 Rule 17 of CPC (in short, CPC) is not a complete or absolute bar to permit amendment of pleadings after commencement of trial. On the contrary even according to the said proviso amendment of pleadings can be permitted after commencement of trial if the court comes to conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. In the instant case, defendant No. 1 pleaded that she could not raise this plea regarding Will dated 3.11.1975 in the original written statement as she found the said Will only just before the filing of the amendment application. In other words, it is the stand of defendant No. 1 that in spite of due diligence she could not raise the proposed plea in the original written statement. Consequently, amendment application could not have been disallowed merely because trial of the suit had commenced.

Learned Counsel for the petitioner next contended that Will dated 3.11.1975 sought to be set up by defendant No. 1 by amendment of written statement has become redundant in view of Will dated 8.9.2003 which has been pleaded by defendant No. 1 in her original written statement. This contention also cannot be accepted. If respondent No. 1 is not able to prove Will dated 8.9.2003 or if the said Will is found to be suspicious or not genuine then certainly defendant No. 1 can rely on Will dated 3.11.1975, if she is able to establish the same. Moreover, Will dated 3.11.1975, if proved, would depict that husband of defendant No. 1 intended to bequeath his properties in favour of his wife defendant No. 1 even as early as in the year 1975.

Plaintiff would get opportunity to rebut the stand of defendant No. 1 taken by amendment of written statement. The plaintiff would not suffer any prejudice by the proposed amendment. Consequently, proposed amendment in written statement has been rightly allowed by the learned trial court. There is no illegality or perversity in the impugned order of the trial court so as to call for interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. The revision petition is, thus, without any merit and is accordingly dismissed.