a".^S3-3¥^^s^., !s3 IN THE HIGHCOURT OF CHHATTISGARH AT BILASPUR Wnt Petition No. / 2005 Petitioner L^^) '^-J^ Respondents P\aj.^-1^'- ^ ^ ^-^6: '^<'^ u»--'! ^- > Smt. Pushplata Mishra Wd./o Late Chandrashekhar Mishra Aged About $4 Years, R/o Railway Station Road, Station Ward, Raipur, Teh. 85 Distt. Raipur VERSUS ^ 1. Manish Tiwari S/o Dwarika Prasad Tiwari, R/o Shriram Ward Chandrapur, Teh. & Distt. Chandrapur (Maharashtra) 2. Vidya^har Mishra Aged About 52 Years, S/o Late Satyadev Mishra, R/o Railway Station Road, Station Ward, Raipur, Teh. 85 Distt. Raipur 3,^«BhaskarMishra, Aged About 15 Years 4. Diwakar Mishra, Aged About 13 Years 5. Sudhakar Mishra, Aged About 11 Years Respondent Nos. 3,4,5 are S/o Vidyadhar Mishra Through their guardian/father Vidyadhar Mishra S/o Late Satyadev Mishra Aged About 52 Years, R/o Station Chowk, Raipur, Teh. 85 Distt. Raipur ^6. Sanjay Shukla, Aged About 37 Yiears. 7. Aj'ay Shukla, Aged About 35 Years • , Respondent Nos. 6 & 7 S/o Ghaii^iyaxa Prasad Shukla ^S. Ghanshyam Prasad Shukla, Aged A^pi^t 70 Years S/o Balbhadra Prasad Shukl^ Resuondent Nos. 6 to 8 are R/o I^ateg^wari Complex, Ne^f' Kotwali, BilaspHT, 1'ieh. Ss Distt. Bilaspur (C.G.) 9. Gopal Krishna Agrawal 10. Sanjay Agrawal 11. Deep Kumar Agrawal, J?espondent Nos. 9 to 11 are S/o Sukhdev Agrawal, R/o Meemsaria, Fafadih, Behind Marwad Pather Deal, Raipur (C.G.) Asscdling:- • Order Dated aS/oa./z.oo.f^ Dated 21/08/2004 Passed By The Caurt of K AfMisrud District Judge. Raipur (FTC) Civil Suit No. 22A/.02 'F'^^f'^^ fiiri/'^/^-' 'K* IW lEfl I® Jt w Iw ]>••1i !©•• | 1;: l^ 1>*1 II 1 111 .w^fftaite ^ smt'-.Pushplata Mishra * versus lanish Tiwari and others Postfor2.7--01-2010 Sd/- PrashantKumarMishra Judge -._L ST |Si? @-^e Writ Petltion No.1020 ofZOOI i3etitioner versus Kespo? Smt. Pushplata Mishrs ish Tiwari and others Shri Raja Sharrna, counsei for the petitioner. Shri P.P.Sahu, c-ounse! for respondent No.1. Shri C.R.Sahu, counsei for respondents No.2 to 5. •Shri Sumesh Bajaj, counsel for respondents No.9 'to 11 None appears for respondents No.6 to 8. WritPetition_underArticle 227 ofthe Constitution of India SB. (Passed on i^January, 2010) This petition under Article 227 of the Constitution of India has been preferred by defendant No.4 in the trial Court, who is aggrieved by the order dated 28-2-2005 passed by the tria! Court rejecting her application under Order .6 Ru!e 17 of the Code of Civil Procedure seeking permission to amend the written statement, and order dated 21-8-2004 whereby the tria! Court allowed the application of respondents No.3, 4 and 5 herein to permit them to examine the attestina witnesses ofalleaed will executed by Dutlibai. 2. Original plaintiff S.mt. Uma Tiwari (substitufed plaintiff Manish Tiwari) fi!ed the suit for partition on 27-1 -1997. The property in the suit i r i belonged to comn'on ancestor Rajaram Mishra, who had 2 sons, ''< ~ . Jagnarayan and Satyadev. Origina! defendant No.2, Dullibai 1 "'^// •i^.3rs-- •• -2- {jtf!-- '> G^ was the wl( pendency of the suit. he'rs of Duliibai on the dev. Du!!ibai died on 23-4-1999 during respondents No.3, 4 and 5 are the lega! 'ngth of a wil! executed in their favour. The present petitioner is the widow of Satyadev. !n other words, the present j of decsased Dullibai. The legal heir; No.3, 4 and 5 herein wer.e lmp!eade petitioner filed her written statement on »te Chandrashekhar, son of •etitioner is the dau$ =?' . of Dulllbai, i.e., re< >r-ii 7-7-2 The Dresent -4-2002 and the issues v»'ere oy ir Af:^! /^ i-7-2002. 3. The petitioner has placed on record an appiication under Ssction 151 ofthe Code of Civil Procedure filed by the lega! heirs of Duliibai, in which it is mentioned that issue No.7 framed by the trial Court is regarding the execution of will by Dullibai on 2-1 -1 997. The evidence ofthe p!aintiff started on 13-5-2004 and after closure of his evidence, the evidence of defendants started on 6-8-2004. The subject ipplication under Order 6 Rule 17 ofthe Code of Civi! Procedure flled on beha'f of the petitioner/defendant No.4 'w'as fi!ed on 5-1 0-2004. Thi; Court, vide order 22-3-2005, has directed that "In the meanwhi'ie, proceedings may go on but final order will not be passecf. IS has been stated at the Bar that now the trial is complete, however, judgment hi not been deliversd because ofthe interim order pasaed bythis Court. "4. The application under Order 6 Rule 17 of the Procedure filed by the petitioner on 5-10-2004 is at Anni e of Civi P-4. By this amendment, defendant No.4 proposes to add a new paragraph 3-A in the written statement to the effect that before his dec ihusband Chandrashekhar had exscuted a vi?i!l in s> i >r favour ntF-r' ..;..t»l!i..tHEB| 3 ,^-0 )equeathing his entire share in the suit property to defendant No.4 and that defendants No.2A to 2C/respondents No.3, 4 and 5 herein have no right, title or interest therein. Defendant No.4, in this application, has stated that in order to del ner No.2A to 2C and plaintiff have joined hand re in the .oroDei iie f a^; s^ ^^ **^ ing an slleged wil! executed by Dullibai, {herefore, It has become necessary for her to raise the pleading regarding execution of wili by her husband iate Chandrashekhar in her f&vour. 5. The piaintiff contested the application by subrnitting that ths app!Jcation is an after-thought and that she had already filed her writien statement 2% years back without stating anything about the will and ateo that the proposed amendment is mala fide and vvould change the nature of the defence by defendant No.4 in her written statement. c i*3S Bs While rejecting the applic-ation for amendment, the learned trii jrt has observed that defendant No.4 has not anythina about the wil! in her written statement and on the contrary she has in her written statement that when her husband Chandrashekhar died issueiess, her father-in-law Safyadev a'lQtted her some property in partition and the parties are in possession of their respective ohares. Thus, the trial Court was of the view that the origina! pleading and the proposed pieadlng are 'nconsistent and ateo that the plaintiff has also closed his evidence and the opposite parties sha!l be prejudiced in the'r ifthe amendment is al!owed. -^ 7. Learned counsel for the petitioner has argued that in view of the !aw laid down by the Hon'ble Supreme Court in ol U ¥ 1.HS D3F contained in the proviso to Order 6 Rule 17 of the Code of Civi! Procedure is not applicable to a suit pending prior to 1-7-2002, i.e., the date on which the Code of CIvil Procedure (Amendment) Act, 2002 came into force. Learned cpunsel for the petitioner, therefore, has urged that the petitioner is entified to seek amendment of the pleadings in splte of commencement of trial as, according to hlm, the amendrnent is necessary for proper adjudication of the and determinaSion of share ofthe petitioner in the.suit oropertY. 8. C:n the other hand, learned counsel for respondent No.l/plaintiff has argued that the amendment is highly belated, mala fide and v/ould change the nature of defence, even if the proviso to the amended Order 6 Rule 17 ofthe Code of Civii Procedure is not applicabie yet the amendmsnt cannot be a!'owed at this staae. rrue it is that aoplvina the ratio of the law laid down bv the lyy.-f -fon'ble Suor (supra) the proviso to the amended Order S Ru!e 17 of the Code of Civil Procedure is not applicabie in the present yet white exercising the discretion to allow amendment of pieadings, it isAhe duty ofthe Court to exercise the discretion in a judlcious manner and that merely because it has the power and discretion to allow amendment, the Court ought not to ailow the application mechanicaily wlthout appreciatlng the facts^of the case, conduct of the parties, the l^. -.. " ^sfage ofthe suit and the nature of pleadings etc. 1 ""?< /'.^ •• \ .•il' i\ ._ 2 1 ilitfs^ | "fe. <^ JS '%- IIWTS' -s" (^: !SS!i 10. !n the present case, the reason assigned by the petltioner for proposing to amend the pleadings in her written statement is that on account of insertion ofthe alleged wil! of Du'libal by respondents No.2A to 2C and due to which it has become necessary for her to amend the pleadings in her written statement. It is mgtter of record that Dullibai died on 23-4-1999. Defendants No.2A to 2C were impleaded on 7-7- 2000 and the petittoner filed-her written statement on 30-4-2002 and thereafter were settled 6" 8-7-2002. The evidence commenced in May, 2004 and Es now complete. 11. 'n the opinlon of .this Court, the amendment sought to be !ncorporated is "ot on!y beiated but shall also prejudice the of the plaintiff and other parties to the suit, who have afready led evidence in the trial. Moreover, allowing the amendment at this wou!d reopen the tria! as all the parties would be required to grant opportunity to prove or disprove the facts and documents pleaded and submitted after the amendment. 12. For the reasons aforesaid, this Court does not find any error to have been committed by the trial Court while rejecting petitioner's appiicstion under Order 6 Ru'e 17 ofthe Code of CMI Procedure. 13. The petitioner has prayed for settlng aside the order dated -21-8-2004, whereby the trial Court allowed the application of respondents No.3, 4 and 5 herein filed under Section 151 ofthe Code of Civi! Procedure to permjt them to examine the attesting witnesses of , the allegsd wil! executed by Dullibai. This Court had not stayed the '•< \further proceedings ofthe suit, therefore, the evidence ofthe parties in %t'£^ <• the suit is already complete, meaning thereby that in pursuance to order 21-8-2004 the needfu! has already bsen completed and as such the challenge to the said part of the order has become infructuous. Even otherwlse, learned counse! for the petitioner, at the time of argument, has not urged anything to assail the said part of the ^ wlt Dstition. 14. The instant writ petitibn under Artlcle 227 of the Constitution of *!. 'ndia faite and is herebv dismlssed. No order as to costs. Sd/- Prashant Kumar Mishra Judge iiSSS^ 1