Punjab-Haryana High Court
Smt.Shobha And Another vs Kumar Sanjay And Others on 15 March, 2013
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Revision No. 382 of 2012
Date of Decision : 15.3.2013
Smt.Shobha and another .....Petitioners
Versus
Kumar Sanjay and others ......Respondents
CORAM : HON'BLE MR. JUSTICE NAWAB SINGH
Present: Mr.C.B.Goel, Advocate,
for the petitioners.
Mr.Amit Jaswal, Advocate,
for the respondents.
NAWAB SINGH J.(ORAL)
This plaintiffs' revision is directed against the order dated November 16, 2011 passed by Additional Civil Judge (Senior Division), Kurukshetra, whereby application filed by the plaintiffs under Order 6 Rule 17 of Code of Civil Procedure (for short "the application") to amend the plaint was dismissed.
2. The plaintiff filed a suit for declaration and partition of the property, mentioned in head note of the plaint. The property originally belonged to one Bal Kishan, who died on April 17, 2007. Bal Kishan had a son named Aprajit, who pre-deceased him. Petitioner Shobha - plaintiff is widow of Aprajit and Shakuntala - defendant No.3 is widow of Bal Kishan. Shobha claimed the inheritence of the property being the widow of Aprajit. Shakuntala filed written statement averring that she was owner in possession of the property in view of the Will executed by Bal Kishan in her favour on April 10, 1989 and the mutation No.617 was accordingly sanctioned in her favour.
Civil Revision No. 382 of 2012 [2]
3. Taking into consideration the averments of defendant No.3 that she became the owner of the suit property by way of Will dated April 10, 1989, the petitioner filed an application to amend the plaint seeking to add paragraph No.14-A, which reads as under:-
"14-A. That the will dated 10.4.1989 and consequent mutation No.617 of village Jogna Khera are illegal, null and void and not binding on the rights of the plaintiffs on the following grounds:-
(i) That the suit property in the hands of Bal Kishan Muztar was ancestral coparcenery/ Joint Hindu Family and Bal Kishan Muztar was not legally entitled to execute a will of the suit property.
(ii) That Bal Kishan Muztar never executed the will in favour of defendant No.1 and 2. The said will has been forged and fabricated by the defendants in collusion with the witnesses and the other persons.
(iii)That the will has been registered on 20.8.2007 i.e. after the death of Bal Kishan Muztar and the procedure as prescribed under the Registration Act for the registration of the will after the death of executor has not been followed. No notice of the registration of the Will was ever served to the plaintiffs by the Sub Registrar before the registration of the alleged will. Civil Revision No. 382 of 2012 [3]
(iv)That the signature of Bal Kishan Muztar on the will are forged and fabricated.
(v) That the mutation in favour of the defendants does not confer any right, title or interest in their favour."
4. Indisputably, the case set up by defendant No.3 is that she became owner of the suit property on the basis of Will executed by Bal Kishan on April 10, 1989 and Mutation No.617 was also sanctioned in her favour. The Will was got registered by her after the death of Bal Kishan, that is, on August 13, 2007 as stated at Bar by learned counsel for the parties. It has also been urged by learned counsel for the petitioners that suit is pending for framing of issues.
5. Learned counsel for the petitioner has urged that application for amendment of the plaint was filed much before framing of the issues, but for one reason or the other, it could not be decided., meaning thereby, the application was moved at the initial stage.
6. Controverting the stand taken by the petitioner, learned counsel for the respondents has urged that the fact of execution of Will was well within the knowledge of the petitioners, but they did not challenge the same at the time of filing of the suit, so, they should not be allowed to amend the plaint. In support of the contention, reliance has been placed on the decision of Hon'ble Supreme Court in Sandeep Polymers Pvt. Ltd. vs. Bajaj Auto Ltd. And others, 2007(4) RCR (Civil) 422.
7. In the cited case, the question involved was with regard to jurisdiction. High Court of Bombay, Nagpur Bench directed the Court to return the plaint, as according to the High Court, the Court at Nagpur Civil Revision No. 382 of 2012 [4] had no jurisdiction to try the suit. The Trial Court was directed to follow the procedure as envisaged under Order 7 Rule 11 of the Code of Civil Procedure. Against the said order, plaintiff went in appeal before Hon'ble Supreme Court, wherein, it was held that it shall be open to the appellant to file a separate suit in relation to cause of action if any relating to the purchase orders, at Pune, as was submitted by learned counsel for the appellant and if the appellant was so advised, he may move for amendment of the suit at Nagpur. It was further held that it shall be open for the respondents - defendants to raise all objections and take such pleas as are available in law.
8. The another authority cited by the counsel for the respondents is Ajay Singh and others vs. Rajasthan Civil Service Appellate Tribunal and others, 2003(4) RCR (Civil) 313, wherein, a Single Bench of Rajasthan High Court held that where, a plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
9. In considered opinion of this Court, both the authorities, referred to above, are of no help to the respondents, because in both the cases the point at issue was not as in the present case. Herein, after filing of written statement by defendant No.3 that she had become owner of the suit property by virtue of Will dated April 17, 2007, the plaintiffs by way of amendment (para 14-A), referred to above, intended to raise pleas with regard to Will and Mutation sanctioned on the basis of same. At the time of seeking amendment, the suit was at the initial stage and the dispute between the parties was with regard to the property (qua which the Will was executed) owned by the father-in-law of Civil Revision No. 382 of 2012 [5] plaintiff Shobha and husband of defendant Shakuntala,
10. In view of above, the revision petition is allowed and order under challenge is set-aside. Resultantly, the application filed by the petitioners is allowed.
15.3.2013 (NAWAB SINGH) gian JUDGE