Rajasthan High Court - Jodhpur
Panna Lal vs Pana Devi on 22 August, 2019
Equivalent citations: AIR 2021 (NOC) 139 (RAJ.), AIR 2021 (NOC) 95 (RAJ.), AIRONLINE 2019 RAJ 1384
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 12118/2019 Panna Lal S/o Shri Prahlad Rai Sharma, Aged About 43 Years, Resident Of Ward No. 6, Ladnu, Tehsil Ladnu, District Nagaur.
----Petitioner Versus
1. Pana Devi W/o Late Shri Rajendra Prasad, B/c Brahmin, Resident Of Ward No. 06, Ladnu, Tehsil Ladnu, District Nagaur.
2. Deepak S/o Late Shri Rajendra Prasad Sharma, B/c Brahmin, Resident Of Ward No. 06, Ladnu, Tehsil Ladnu, District Nagaur.
3. Rakesh Kumar Kumar S/o Late Shri Rajendra Prasad Sharma, B/c Brahmin, Resident Of Ward No. 06, Ladnu, Tehsil And District Nagaur.
4. Prahlad Rai Sharma S/o Late Shri Duli Chand Sharma, B/c Brahmin, Resident Of Ward No. 06, Ladnu, Tehsil And District Nagaur.
----Respondents
For Petitioner(s) : Mr. Sushil Solanki
For Respondent(s) :
JUSTICE DINESH MEHTA
Judgment
22/08/2019
By way of the present writ petition, the petitioner has challenged the order dated 9.5.2019, passed by the learned Civil Judge and Judicial Magistrate, Ladnu (hereinafter referred to as the learned trial court), vide which the application under Order VI (Downloaded on 28/08/2019 at 11:41:34 PM) (2 of 4) [CW-12118/2019] Rule 17 of the Code of Civil Procedure filed by the plaintiffs- respondents nos.1 and 2 herein has been allowed.
Ffacts relevant for the present purposes are that the plaintiffs (respondents nos.1 and 2 herein) filed a suit for permanent injunction seeking an order that the defendants be restrained from raising construction on the disputed vacant portion. It was inter alia, contended that they are legal heirs of Duli Chand, who was owner of the contentious property and thus, entitled for half of the property. The defendants being other legal representatives filed a written statement and came out with a defence that the property in question has divested in them, by virtue of Will dated 21.4.2008.
Faced with such situation, the plaintiffs moved an application dated 20.4.2018 under Order VI Rule 17 of the Code of Civil Procedure, 1908 and sought a leave to challenge the Will aforesaid in the pending suit.
The present petitioners (defendants) opposed such application, inter alia, for the reason that the amendment as prayed for would change the nature of the suit.
The trial court allowed plaintiffs' amendment application inter alia, observing that at the time of institution of the suit, the plaintiffs were not aware about existence of the will dated 21.4.2008 and as soon as they became aware of such will, they laid appropriate challenge. While allowing the application, learned trial court observed that the suit is at its initial stage and grant of leave to amend the suit would avoid multiplicity of litigation.
Assailing the order dated 9.5.2019, passed by the trial court, learned counsel for the petitioner submitted that initially the suit was filed for permanent injunction and by way of the impugned (Downloaded on 28/08/2019 at 11:41:34 PM) (3 of 4) [CW-12118/2019] order, the same has been converted to a suit for cancellation of will; such change in the nature of suit is impermissible in law.
I have heard learned counsel for the petitioner and perused the material available on record.
The principles of grant of amendment under Order VI Rule 17 of the Code are well settled; an application for amendment has to be examined on various aspects, on the principles which have been enunciated by Hon'ble Supreme Court in the case of Revajeetu Builders and Developers Vs. Narayanaswamy & Sons & Ors. reported in (2009) 10 SCC 84.
Merely because the nature of the suit would change, consequent to the amendment sought, the application cannot be turned down, particularly when, dismissal of the application for amendment would lead to multiplicity of litigation on the one hand and on the other, it will result in failure of justice. As against this, its acceptance would facilitate and complete adjudication of the dispute(s) between the parties.
In the present factual backdrop, the suit itself was filed in the year 2018, the respondents have moved amendment application as soon as they realized that the defendants are asserting their right on the basis of the will and sought leave to amend the suit so as to challenge the will. The challenge to will is incidental and is not otherwise barred by limitation. If fresh suit for the same cause is permissible, this Court does not find any reason to refuse the amendment prayed by the plaintiffs.
In almost identical fact situation, this Court in the case of Smt. Anshu Mala David Vs. Shri Anish Paul & Anr reported in 2017(2) RLW 1578 held as under:-
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(4 of 4) [CW-12118/2019] "14. Having considered the law on the subject in light of the factual matrix of the case in hand, I am of the considered view that the subject application seeking amendment in the plaint and impleadment of the beneficiaries of the will deserves to be allowed, inasmuch as the plaintiff has learnt about the execution of the will only after looking at such recital in the written statement and for proper adjudication of the rights of the legal representatives of Mr. Samual G. Paul, correctness, genuineness and effect of the will dated 17.07.1987 needs to be examined.
15. The amendment sought for is squarely covered under the ambit of Order 6 Rule 17 of the Code of Civil Procedure and the same is essential rather inevitable for proper, convenient and complete adjudication of the dispute between the parties. It will advance the cause of justice and make the remedy claimed by the plaintiff just and meaningful.
16. Once the amendment in the suit is allowed and a challenge to the will is permitted; which I hereby do, the impleadment as sought by the plaintiff; to array the beneficiaries of the Will in the suit proceedings; as a necessary corollary, becomes imperative.
17. Hence, the writ petition is allowed, the order impugned dt. 24.07.2004 is quashed and set aside and the composite application filed by the plaintiff under Order 6 Rule 17, Order 1 Rule 10 read with Section 151 of CPC is allowed." In the light of the above discussion, I do not find any infirmity or error of jurisdiction in the impugned order.
The writ petition is therefore, fails. The stay application also stands disposed of.
(DINESH MEHTA),J 277-CPGoyal/-
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