THE HONOURABLE SRI JUSTICE A.GOPAL REDDY C.R.P.No.2645 of 2010 Date of Order: 11-11-2011 Between: Mogilineni Venkata Satya Vara Prasad ..Petitioner and 1. Mongilineni Rama Mohana Rao and others ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY C.R.P.No.2645 of 2010 Oral order: The 3rd defendant come up with this revision under Article 227 of the Constitution assailing the correctness of the order passed in I.A.No.347 of 2010 in O.S.No.1269 of 2007 by the Rent Controller-cum-IV Additional Junior Civil Judge, Vijayawada. The 1st respondent/plaintiff filed the suit for permanent injunction and examined P.Ws.1 to 3 in which the 3rd defendant/petitioner herein has also examined D.Ws.1 to 3. When the suit is coming up for further evidence, the above I.A. was filed by the plaintiff stating that he is the senior citizen and in I.A.No.689 of 2007 the petitioner/3rd defendant filed a counter that for the first time he got filed a registered Will dated 11-05-2006 alleged to have been executed by his mother; he has no knowledge about the existence of the alleged Will, which is a rank forgery and surrounded by suspicious circumstances. In view of ill health he cannot have another proceedings challenging the Will put forth by the petitioner/3rd defendant. Therefore, he may be permitted to amend the plaint adding the relief of declaration as the Will set up by the 3rd defendant is void and not binding on him. The petitioner/3rd defendant filed a counter stating that on dismissal of I.A. filed for temporary injunction, the 1st respondent/plaintiff unsuccessfully challenged the same in appeal—CMA No.13 of 2008 before the Additional District Judge, Krishna which was initially dismissed for default and the petitioner filed for restoration of appeal was also dismissed. On dismissal of the appeal, the trial in the suit commences on 25-08-2008, in which P.Ws.1 to 3 were examined and plaintiff’s side evidence was closed on 15-02-2010. On behalf of the defendants D.Ws.1 to 3 were examined. At that stage the present petition was filed by the plaintiff for amendment of plaint i.e. for conversion of a bear injunction suit into a suit for declaration of title. Original Will filed by the petitioner/3rd defendant in I.A.No.689 of 2007 was marked as Ex.B1 in the said I.A. Therefore, the present amendment cannot be entertained. The lower court by impugned order allowed the I.A. holding that since the Will set up by the 3rd defendant is subsequent to filing of the suit, instead of driving the plaintiff to institute another suit for challenging the same, it is necessary to permit the proposed amendment. Sri P.R.Prasad, learned counsel for the petitioner/3rd defendant strenuously contended that in view of Order VI Rule 17 CPC the present amendment after commencement of the trial cannot be entertained. When the petition filed for temporary injunction was dismissed, the plaintiff has not taken any steps to set aside the dismissal order but proceeded with the evidence. So, allowing the amendment will lead to reopening the entire suit and the same cannot be permitted. Sri K.Sarvabhouma Rao, learned counsel for the 1st respondent/plaintiff sustained the order contending that to avoid multiplicity of proceedings the lower court allowed the amendment. Once the amendment of the plaint is allowed, the petitioner/3rd defendant will have an opportunity to file additional written statement. The 1st respondent/plaintiff is not leading any further evidence except relying upon his rights under the Will executed in his favour. Plaintiff claiming the property under a Will executed by his mother on 25-04-2002, bequeathing the property got by her through her husband. After execution of Will dated 25-04-2002, the plaintiff’s mother executed another Will dated 29-05-2004 cancelling the earlier Will dated 25- 04-2002. Since then he is in possession of the suit schedule property. Even otherwise the plaintiff can always file a comprehensive suit for declaration and also for injunction basing upon possession by withdrawing the present suit. As early as in the year 1988 it was held by the Supreme Court that rules of procedure are made to advance the cause of justice and not to defeat it. In the present case, when the suit is filed for permanent injunction basing upon the possession and claiming rights under the Will executed by plaintiff’s mother, if the petitioner/3rd defendant claims that he has inherited the property under a Will executed in his favour, he has to establish the said Will in the manner prescribed. Unless necessary pleadings are made questioning the said Will issues will not be framed shifting the burden to the party who sets up the Will. So, the petitioner/3rd defendant necessarily has to establish execution of the Will in his favour. It is now fairly well settled that proviso to Order VI Rule 17 CPC altogether cannot take away the power of the Court in allowing the amendment to advance the cause of justice. The 1st respondent/plaintiff being a senior citizen cannot be driven to another suit by withdrawing the present suit. The lower court rightly exercised the discretion while ordering amendment which does not suffer from any manifest illegality warranting interference. The Revision Petition fails and it is accordingly dismissed. However, the petitioner is granted two weeks time from the date of receipt of receipt of a copy of this order to file written statement. No costs. _________________ A.GOPAL REDDY, J. 11-11-2011 Murthy