C.R. No. 947 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 947 of 2009 Date of decision:- 20.02.2009. Sukhchain Kaur and another ...Petitioners Versus Amrinder Singh and others ...Respondents CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present:- Mr. Vineet Chaudhary, Advocate for the petitioners. JASWANT SINGH J. The plaintiffs-petitioners Sukhchain Kaur and Sukhwinder Kaur, both daughters of Smt. Amarjit Kaur w/o Shri Dilbagh Singh son of Bachan Singh, have filed the present petition under Article 227 of the Constitution of India for setting aside the impugned order dated 06.01.2009 vide which their application under Order 6 Rule 17 of the CPC has been dismissed by learned Additional Civil Judge (Senior Division) Ambala City. The facts giving rise to the matter in controversy are as under:- That a civil suit bearing No.380/17.10.2000 was filed by the plaintiffs-petitioners for seeking a decree of declaration to the effect that they are absolute owners to the extent of 1/6th share in the land described in plaint and alleged Will dated 15.6.1996 registered on 29th of May, 1996 executed by Shri Dilbagh Singh, father of the plaintiffs in favour of defendant No.1 and subsequent sale deed and mutations in favour of defendants No.2 to 8 are wrong and illegal and liable to be set aside. Further to grant a decree of permanent injunction restraining the defendants- C.R. No. 947 of 2009 -2- respondents from further creating any charge as well as alienation and raising any construction over the suit land. It is necessary to mention here that on earlier occasion also an application for amendment of the plaint was filed on 26.11.2002 and at that time also the plaintiffs did not agitate the present proposed amendment. Now again an application under Order 6 Rule 17 of CPC has been filed by the plaintiff with a proposed amendment, and they want to incorporate that while filing the suit, they could not incorporate the plea of existence of Will dated 30.07.1990 due to inadvertance. It is further alleged that the Will dated 30.07.1990 is a legal and valid document and which creates lawful rights of succession in the interest of deceased Dilbagh Singh and now they want to plead the existence and execution of the Will dated 30.07.1990 in para 10 of the plaint. The proposed amendment was vehemently opposed by the defendants, inter alia, on the ground that the application is belated and not maintainable. It is further pleaded that Bachan Singh and Dilbagh Singh executed a valid Will dated 15.5.1996 and the same was registered on 29th of May, 1996 and in this Will it was clearly mentioned that earlier Will dated 30.07.1990 stands cancelled. It is further pleaded that even if the Will dated 30.07.1990 is allowed to stand the plaintiffs have got no right as Dilbagh Singh had pre-deceased Bachan Singh. In these circumstances, the learned Trial Court has rejected the application for amendment of the plaint on the ground that case is fixed for rebuttal evidence and arguments and there was no scope for application for amendment of the plaint. After perusal of the record of the case, it is apparently clear that the plaintiffs are assailing the Will dated 15.05.1996 registered on 29.05.1996. It is also crystal clear that plaintiffs were/are very well aware C.R. No. 947 of 2009 -3- about the fact that earlier Will dated 30.07.1990 has been cancelled vide the impugned Will dated 29.05.1996 and as such they were having the knowledge of existence of the earlier Will dated 30.07.1990 and this fact was not taken by them at the time of filing of the suit. Even on subsequent occasion, when the plaintiffs filed an application under Order 6 Rule 17 of CPC on 26.11.2002, they did not chose to incorporate the factum of the existence of Will dated 30.07.1990. Therefore, it is apparently clear that the plaintiffs were aware about the existence of alleged Will dated 30.07.1990 from the very beginning but they deliberately and for the reasons best known to them did not opt to incorporate this fact, which is now sought to be pleaded by way of the proposed amendment. It is also necessary to take note of the fact that the civil suit was filed in the year 2000 and then amendment was allowed in the year 2002. Issues were framed on 9th of October, 2003 and both the parties concluded their evidence on the respective issues on 13.3.2007 and the case was fixed for rebuttal evidence and arguments of the parties. In these circumstances, no ground is made out under Article 227 of the Constitution of India to interfere with the impugned order passed by learned Trial Court while rejecting the application for amendment under Order 6 Rule 17 of CPC. Dismissed. February 20, 2009 (JASWANT SINGH) vj JUDGE