Himachal Pradesh High Court
Sh. Santosh Kumar And Others vs Smt. Promila And Another on 26 March, 2019
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.: 519 of 2018.
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Reserved on: 25.03.2019 Decided on: 26.03.2019.
Sh. Santosh Kumar and others ....Petitioners.
Versus Smt. Promila and another ...Respondents. Coram The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes For the petitioners : Mr. Peeyush Verma, Advocate.
For the respondents : Mr. R.M. Bisht, Advocate Ajay Mohan Goel, Judge By way of this petition filed under Article 227 of the Constitution of India, petitioners/defendants have assailed order dated 08.10.2018, passed by the Court of learned Civil Judge (Sr. Divn.), Court No. 1, Rohru, in CMAs No. 277-6 of 2018 and 278-6 of 2018 in Civil Suit No. 157/1 of 2014, vide which applications filed by the petitioners/defendants under Order 6, Rule 17 CPC for carrying out amendment in the written statement and under Order 7, Rule 14 CPC for placing on record photocopy of Will dated 5.3.2012, stand rejected.
::: Downloaded on - 27/03/2019 21:58:52 :::HCHP2. Brief facts necessary for adjudication of this petition are as under:-
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Respondents/plaintiffs (hereinafter to be referred as 'plaintiffs') instituted a suit for declaration that they being daughters of Atma Ram, son of Karam Dass, who was impleaded as defendant No. 1, were coparceners alongwith others and were having equal shares in the ancestral properties in the hands of their father Shri Atma Ram. As per them, suit land was jointly owned and possessed by Karam Dass and other recorded co-owners. Said co-owners Karam Dass and Fina Dass, sons of Davi Saran were succeeded by Atma Ram by way of inheritance/succession and after the death of Karam Dass, suit property devolved upon Atma Ram vide mutation No. 5364, dated 30.06.2004. As per the plaintiffs, as Atma Ram was not willing to give to the plaintiffs their share, hence, they were seeking declaration that they were entitled to their respective shares out of the suit property.
3. The case set up by the plaintiffs has been denied and as per averments made in the written statement, plaintiffs are not entitled to any relief as prayed for and ::: Downloaded on - 27/03/2019 21:58:52 :::HCHP further the suit filed by them is not maintainable. Defendants have denied that plaintiffs are the daughters of Atma Ram or .
that they are coparceners with Atma Ram qua the suit land or are having equal share by birth in the properties in the hands of Atma Ram. Written statement filed in November, 2014 was supported by the affidavit of Sumesh Chauhan, son of Atma Ram. During the pendency of the suit, defendant Atma Ram died. r
4. In September, 2018, petitioners/defendants filed an application under Order 6, Rule 17 CPC with the prayer to allow them to amend the written statement. It was averred in the application that in the course of preparing the case for leading evidence on behalf of the defendants, it transpired that due to bonafide oversight and inadvertence, this defence could not be taken earlier that Atma Ram during his lifetime had executed a Will dated 05.03.2012 and had bequeathed his movable and immovable property in favour of his sons, namely, Santosh Kumar and Sumesh Chauhan. The proposed amendment is being reproduced herein-below:-
"10. That without conceding any of the defenses raised hereinabove it is submitted on behalf of the defendants that the predecessor-in-interest of the ::: Downloaded on - 27/03/2019 21:58:52 :::HCHP defendants, Sh Atma Ram, who had earlier been arrayed as defendant in the suit, had during his lifetime executed a Will Dated 5.03.2012. the Will .
dated 5.03.2012 was duly registered in the office of the Sub Registrar Shimla (Urban). By way of the Will the said Sh. Atma Ram has bequeathed his entire movable and immovable properties in favour of the defendants Sh. Santosh Kumar and Sh. Sumesh Chauhan, being his sons and out of natural love and affection. This being so no person other than the abovestated Sh. Santosh Kumar and Sumesh Chauhan can stake any claim in the properties left behind by late Sh Atma Ram, much less the plaintiffs whose claim top the properties of Late Sh Atma Ram is based upon false and concocted allegations. The suit of the plaintiffs thus is liable to be dismissed with costs."
5. Petitioners/defendants also filed an application to place on record photocopy of Will dated 05.03.2012 of deceased Atma Ram. These application have been dismissed vide impugned order dated 08.10.2018.
6. Feeling aggrieved, petitioners/defendants have filed this petition.
7. I have heard learned Counsel for the parties and also gone through the impugned order as well as the record of the case.
::: Downloaded on - 27/03/2019 21:58:52 :::HCHP8. A perusal of the impugned order inter alia demonstrates that learned Court below has rejected the .
application filed by the petitioners for amendment of the written statement inter alia on the ground that the proposed amendment was not necessary for the adjudication of the case as the cause of action as it stood mentioned by the plaintiffs in the civil suit was completely different and had arisen during the lifetime of Atma Ram itself. Learned Court below held that defendants intended to amend written statement at a belated stage to prolong disposal of the matter.
As rights of the parties were to be adjudicated as they existed at the time when Atma Ram was alive and this application filed under Order 6, Rule 17 of CPC was devoid of any merit.
It also held that there was no necessity to take on record the copy of Will which otherwise also was subject matter of the Civil Suit No. 27/1 of 2015, wherein the validity of the Will stood assailed separately by the respondents/plaintiffs.
9. In my considered view, there is neither any illegality nor perversity nor jurisdictional error in the order passed by learned Court below rejecting the applications filed by the present petitioners for amendment of written ::: Downloaded on - 27/03/2019 21:58:52 :::HCHP statement as also for placing on record copy of Will dated 05.3.2012. As noted above, respondents/plaintiffs had filed .
the suit against the present petitioners as also Atma Ram on the ground that plaintiffs were daughters of Atma Ram, were coparceners with Atma Ram and therefore were having share in the ancestral property, which had come in the hands of Atma Ram from his ancestors. As far as the issue of Will is concerned, it is a matter of record that no reference of the same was made in the written statement whereby the claims of the plaintiffs have been denied. Even otherwise, execution of a Will by late Shri Atma Ram allegedly bequeathing his entire properties, movable as also immovable, in favour of his sons, has nothing to do with the controversy which is the subject matter of the suit filed by the present respondents.
Plaintiffs have claimed right over the suit land on the ground that they being daughters of Atma Ram are entitled for their respective shares as the suit land is ancestral and stood inherited by Atma Ram from his ancestors. Whether or not there is merit in the contention of the plaintiffs has got nothing to do with the execution of the Will by Atma Ram with regard to the suit property. In other words, execution of ::: Downloaded on - 27/03/2019 21:58:52 :::HCHP Will qua the suit land by late Atma Ram can have no effect whatsoever over the claim, as has been put forth in the Civil .
Suit and the same has to be independently decided by the learned Court below on the basis of evidence which is to be led by the parties on the issues which already stand framed.
Learned Court below has rightly held that the proposed amendment had got nothing to do with the controversy at hand and it has rightly rejected the application filed by the petitioners for amendment of the written statement. This Court concurs with the findings of learned Court below. In my view also, the proposed amendment in the written statement has no bearing upon the controversy, subject matter of the suit and apparently, applications so filed by the defendants were just to prolong the issues especially when it is not denied that validity of the Will in issue is the subject matter of another suit between the parties. Similarly, there is no illegality with the findings returned by the learned Court below that there was no need to place on record photocopy of the Will dated 5.3.2012. Same had no connection whatsoever with the issue subject matter of the suit before the learned Court below.
::: Downloaded on - 27/03/2019 21:58:52 :::HCHPAccordingly, as this Court does not finds any merit in this petition and further as the order passed by the .
learned Court below does not suffers from any illegality, perversity or jurisdictional error, this petition is dismissed.
Registry is directed to forthwith return record of the case to learned trial Court. Parties through their learned Counsel are directed to appear before the learned trial Court on 08.04.2019. Pending miscellaneous application(s), if any, also stand disposed of.
(Ajay Mohan Goel) Judge March 26, 2019 (narender) ::: Downloaded on - 27/03/2019 21:58:52 :::HCHP