C.R. No. 5983 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 5983 of 2008 Date of Decision: August 11, 2009 Gurpal Singh and another …..Petitioners Vs. Lachman Singh and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. J.S. Brar, Advocate for the petitioners. Mr.I.S. Mann, Advocate for respondents No. 1, 3 to 10, 12 to 14 and 16. -.- M.M.S. BEDI, J. (ORAL) This order will dispose of a revision petition filed by Gurpal Singh and Sukhpal Singh who have been impleaded in the case as heirs of deceased- plaintiff Angrej Kaur. Vide impugned order, application under Order 6 Rule 17 CPC filed by defendant- respondents No.13 to 30 has been C.R. No. 5983 of 2008 [2] allowed permitting the defendant- respondents to take up the plea that the suit property is ancestral property. Counsel for the petitioners has contended that the defendants are yet to lead their evidence but a serious prejudice will be caused to the plaintiff- petitioners in case the amendment is permitted. He has raised a legal objection that without there being due diligence having been pleaded and established, the amendment of the written statement has been allowed. I have heard counsel for the petitioners as well as counsel for the respondents in order to find out whether any serious prejudice would be caused to the plaintiffs or whether the amendment is necessary for the just decision of the case. I have gone through the nature of the suit. The suit had been filed by plaintiff- Angrej Kaur for declaration that she is exclusive owner in possession of about 19/20 properties mentioned in heading of the plaint and that the defendant- respondents have got no title or interest in the property in dispute on the basis of inheritance. It is not out of place to observe here that the property in dispute was in the name of Bohar Singh, the son-in-law of plaintiff- Angrej Kaur, who had died in an accident alongwith all members of his family. Even the youngest son of Bohar Singh died in the accident. Being mother-in-law, claiming the sole surviving person to inherit the property, she was entitled for declaration. The defendant- respondents by filing written statement had been contesting the suit but in their application under Order 6 Rule 17 CPC, they have pleaded that on examination of revenue record they have found that deceased Bohar Singh and Lakhbir Singh alongwith defendant- respondents No.13 to 30 are C.R. No. 5983 of 2008 [3] descendant of common ancestor Chuhar Singh and that the land has devolved from him from generation to generation and that the defendants have got right in it by birth on account of which land being ancestral coparcenary and joint Hindu property as such the plaintiff Angrej Kaur has no right to succeed Lakhbir Singh or Bohar Singh or his wife Manjit Kaur. The trial Court has allowed the application holding that the proposed amendment will not change the nature of the suit and for disposal of the controversy proposed amendment is relevant. Counsel for the petitioners has relied upon Ajendraprasadji N. Pande and another Vs. Swami Keshavprakeshdasji N. and others, 2007 (1) RCR (Civil) 481 to contend that in view of amended provisions of Order 6 Rule 17 CPC, amendment in pleadings cannot be allowed after the trial had commenced and the trial commences that the issues are settled and the case is set down for recording of evidence. He has also argued that due diligence has not been pleaded in the application nor the amendment has been allowed observing that the defendant- respondents had exercised due diligence while filing the written statement at original stage. In view of the peculiar circumstances of this case wherein the dispute is regarding succession of property of deceased Bohar Singh, which is claimed by plaintiff- Angrej Kaur being mother-in-law on the basis of her right of succession, it seems necessary that the real question regarding the nature of the property and the right, title and interest of the parties in the same is determined once for all so that right of inheritance can be fairly decided. As per Order 6 rule 17 CPC, the amendment of the pleadings can C.R. No. 5983 of 2008 [4] be allowed if it is necessary for the purpose of determining the real question in controversy between the parties. The proviso no doubt prevents the amendment of pleadings after the commencement of the trial but where the circumstances warrant that to determine the real question in controversy the amendment requires to be incorporated in the pleadings, the same can be permitted. I have also considered the facts and circumstances of this case from another angel. The plaintiffs have already led the evidence in affirmative. The defendants are yet to commence the evidence. In case the amendment is allowed it will not cause any serious prejudice to the plaintiffs. In this context, I have seen issue No.1 already framed which is to the effect whether the plaintiff is entitled to the declaration as prayed for. Under issue No.1, the initial onus lies upon the plaintiff to establish that the plaintiff has got right in the property in dispute. The onus also lies on the defendant- respondents to establish that the plaintiff is not, entitled for declaration. In case the defendants produced any evidence in support of the plea which has been permitted to be incorporated, it will always be open to the plaintiffs to rebut the evidence produced by the defendants under issue No.1. As the interests of the plaintiff- petitioners are safeguarded, no ground is made out for interfering in the order passed by the trial Court allowing the amendment. Petition is dismissed. However, a direction is issued to the trial Court to expeditiously dispose of the trial. C.R. No. 5983 of 2008 [5] August 11, 2009 (M.M.S.BEDI) sanjay JUDGE