IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CIVIL REVISION NO. 23 OF 2010 Shri Sikander Parvez. ……Defendant no.1/Revisionist Versus Smt. Razia Parvez and others. ……Plaintiff/Respondents. Present: Mr. T.S. Bindra, Advocate with Mr. Arvind Vashisth, Advocate for the revisionist. Mr. V.K. Kohli, Senior Advocate, assisted by Mr. I.P. Kohli, Advocate for respondents. JUDGMENT Hon’ble Sudhanshu Dhulia, J (Oral) 1. Heard Mr. T.S. Bindra with Mr. Arvind Vashisth, Advocates for the revisionist and Mr. V.K. Kohli, Senior Advocate, assisted by Mr. I.P. Kohli, Advocate for the respondents. 2. This revision has been filed by the revisionist/defendant challenging the order dated 24.9.2009 passed by the learned 3rd Addl. Civil Judge (Senior Division), Dehradun in Original Suit No. 357 of 2006 Razia Parvez Vs. Sikander Parvez, on an application for amendment of written statement moved by the defendant/revisionist, whereby the application for amendment of the written statement has been rejected. 3. Brief facts of the case are that the plaintiffs i.e. the respondents before this court had filed a suit for partition of property. The suit being Original Suit No. 357 of 2006 Razia Parvez and others Vs. Sikander Parvez and another. 4. The plaintiffs in the suit were as follows:- 1. Mrs. Razia Parvez, aged 58 years* 2. Mr. Yusuf Parvez, aged 16 year* 3. Ms. Monina Sara Parvez, aged 16 years* *in the year, 2006. 2 5. Plaintiff no. 1 Mrs. Razia Parvez was the wife of one late Mr. Gulshan Parvez. The property in dispute admittedly belongs to the two brothers i.e. Gulshan Parvez and Sikander Parvez. The brothers claimed half share of the property in question, or at least “equal share” in the property. Plaintiff no. 1 is the wife of Mr. Gulshan Parvez. Plaintiff no. 2 is the son of Mr. Gulshan Parvez from his first wife, and plaintiff no. 3 is the daughter of late Mr. Gulshan Parvez and plaintiff no. 1 Mrs. Razia Parvez. Paragraphs 1, 2 and 3 of the plaint read as under:- “1. That Mr. Gulshan Parvez, husband of the Plaintiff No. 1 and the father of the plaintiffs 2 and 3, and the defendant no. 1 were real brothers. They were the co-owners of the property fully detailed and described in the schedule given at the foot of this plaint (hereinafter referred to as the said property) with each having one half share therein. 2. That Mr. Gulshan Parvez was married to Ms. Edith. Plaintiff No. 2 was born out of the said wedlock. The marriage between Mr. Gulshan Parvez and Ms. Edith was dissolved by a decree of divorce. Mr. Gulshan Parvez re- married the plaintiff no. 1 in 1984 and out of the said wedlock plaintiff no. 3 was born. 3. That Mr. Gulshan Parvez expired on 15.4.1992 leaving behind the plaintiffs as his only heirs and legal representatives to inherit his share in the said property.” 3 6. In his reply, the defendant / revisionist gave the following reply to the said paragraphs:- “It is admitted that late Mr. Gulshan Parvez and defendant no. 1 were real brother. Rest are not admitted. The real situation will be clear from the additional plea. Paragraph 2 of the plaint is admitted. Averment made in Para 3 of the plaint that Sri Gulshan Parvez died on 15.4.1992 is admitted. It is also admitted that the plaintiffs are the legal heirs of Sri Gulam Parvez. Rest are not admitted. The situation would become clear from additional pleas.” 7. Later, the defendant/revisionist moved an application for amending paragraphs 2 and 3 of his written statement saying that plaintiff no. 1 Razia Parvez, prior to marrying Gulshan Parvez on 29.4.1984, was married to another person, though she had obtained a decree of divorce from her earlier husband on 27.4.1984. Yet, it is contended that though on 29.4.1984, Smt. Razia Parvez married to Gulshan Parvez, yet it was a marriage during the period of “Iddat” of Smt. Razia Parvez, and therefore, it would be no marriage in the eyes of law! Hence, they have now challenged the status of Smt. Razia Parvez as legal heir to late Mr. Gulshan Parvez, by means of the apparent amendment application. 8. Normally, unless it is too late in the day, or the amendments would change the nature of the suit itself, pleadings are allowed to be amended, and more particularly, for an amendment in a written statement (as against the plaint), a more liberal attitude is generally 4 adopted. However, under the peculiar facts and circumstances of the case, this Court is of the view that the court below has rightly rejected the amendment application of the defendant/ revisionist. The amendment application has been rejected on the ground that the facts once admitted by the defendant cannot be denied by way of an amendment. Apart from this, there is another aspect. Defendant no. 1 Sikander Parvez is the brother of late Gulshan Parvez, who was earlier married to one Ms. Edith and thereafter, re-married to Smt. Razia Parvez (plaintiff no. 1) in the year 1984. Definitely defendant no. 1 was in full knowledge of the earlier marriage of his brother as well as the earlier marriage of his sister-in-law i.e. plaintiff no. 1 Smt. Razia Parvez. Therefore, it cannot be said that such an important fact could not have been in his knowledge, even with “due diligence” as provided in proviso to Order VI Rule 17 of Code of Civil Procedure, 1908 (for short, CPC). Order VI Rule 17 of CPC, which provides for the proviso to amendment of pleadings reads as under:- “[17. Amendment of pleadings.—The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not 5 have raised the matter before the commencement of trial.” 9. Moreover, in Muslim Law when a woman during the period of her “iddat” marriage again, it may not invalidate the marriage totally. Though this Court is not giving any definite opinion on this subject, and in spite of the fact that the instant civil revision of the revisionist is being dismissed, it grants liberty to the defendant/revisionist to take all possible defence under the law subject to the pleadings already made. With these observations, the instant civil revision is dismissed. No order as to costs. (Sudhanshu Dhulia, J.) 14.12.2010 Rathour