Juni and Another vs Suman Devi and Others

L.N. Mittal, J.—In this revision petition filed by the plaintiffs under Article 227 of the Constitution of India, challenge is to order dated 29.5.2012 Annexure P/7 passed by the trial court thereby dismissing application Annexure P/2 filed by the plaintiffs for amendment of their plaint Annexure P/1. Admittedly, the plaintiffs are daughters of Ram Kishan (since deceased) from his first wife Sukhdevi proforma respondent no. 5. Plaintiffs have alleged that Bhagat Singh (since deceased-predecessor of respondents no. 1 to 3) and Jagat Singh defendant no. 4 are sons of Ram Kishan from his second wife Birmati with whom Ram Kishan married during life time of his first wife.

In the amendment application, the plaintiffs alleged that on 5.8.2011, they have come to know that in fact second wife of Ram Kishan was Ram Rati daughter of Man Singh and inheritance mutation of Man Singh was sanctioned in favour of Bhagat Singh and Jagat Singh also, being sons of his pre-deceased daughter Ram Rati. Accordingly in different paragraphs of the plaint, name of Birmati is sought to be substituted as ''Ram Rati daughter of Man Singh resident of Shahpur'', by amendment of plaint.

Contesting respondents no. 1 to 4 by filing reply Annexure P/3 opposed the amendment application and denied the averments made therein. It was pleaded that there was no second marriage of Ram Kishan either with Birmati or Ram Rati. On the other hand, it was alleged that Bhagat Singh and Jagat Singh are sons of Ram Kishan from his first wife Sukhdevi. Inheritance mutation of Man Singh in favour of Bhagat Singh and Jagat Singh was also denied. Various other pleas were also raised.

Learned trial court vide impugned order Annexure P/7 has dismissed amendment application Annexure P/2 filed by the plaintiffs who have, therefore, filed this revision petition to assail the said order.

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

Counsel for the petitioners vehemently contended that it was only bonafide error in the original plaint that name of Birmati was mentioned as second wife of Ram Kishan instead of correct name being Ram Rati daughter of Man Singh and therefore, proposed amendment of plaint should be allowed.

On the other hand, counsel for contesting respondents no. 1 to 4 contended that amendment of plaint was sought at the stage of rebuttal evidence and final arguments in the suit and therefore, the same has been rightly declined by the trial court.

I have carefully considered the matter. According to proviso to Order 6 Rule 17 of the Code of Civil Procedure, amendment of pleadings cannot be allowed after commencement of trial unless party seeking amendment could not have raised the matter before commencement of trial inspite of exercise of due diligence. In the instant case, Sukhdevi (first wife of Ram Kishan)-mother of the plaintiffs/petitioners is still alive. According to plaintiffs'' version, their father Ram Kishan had performed second marriage with Birmati (now said to be Ram Rati). If it were so, plaintiffs'' could not have been ignorant of the correct name of the second wife of Ram Kishan while filing the suit, more particularly because plaintiffs'' own mother (first wife of Ram Kishan) is still alive and is party to the suit as proforma defendant no. 5. By seeking proposed amendment, the plaintiffs want to reopen the whole case because it would result in de-novo trial. It cannot be said that inspite of due diligence, plaintiffs could not have raised the aforesaid plea before commencement of trial. It may be mentioned that in the original plaint, name of father of Birmati has not been mentioned at all, but now name of father of Ram Rati, alleged second wife of Ram Kishan is also sought to be added. Thus, now the plaintiffs want to change the whole case by amendment of plaint which cannot be permitted. It is also significant to notice that plaintiffs have also led their evidence to the effect that Birmati was second wife of Ram Kishan. For the reasons aforesaid, I find that proposed amendment of plaint has been rightly declined by the trial court. The same cannot be allowed having been sought not only after commencement of trial but at the fag end of the trial (at the stage of final arguments in the suit). There is, therefore, no perversity, illegality or jurisdictional error in impugned order of the trial court warranting interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is meritless and is accordingly dismissed.