Anoushka Kajaria vs Bimal Kajaria
2023 Latest Caselaw 2199 Cal/2

OD-1
                              ORDER SHEET

                        IA No. GA 5 of 2023
                                 In
                            TS 7 of 2022
                 IN THE HIGH COURT AT CALCUTTA
             TESTAMENTARY & INTESTATE JURISDICTION
                          ORIGINAL SIDE


                        IN THE GOODS OF :
                   BHAGIRATH KAJARIA, DECEASED
                               AND
                        ANOUSHKA KAJARIA
                               VS.
                          BIMAL KAJARIA


BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE

Date: 22nd August, 2023.

Ms. Dipika Banu, Advocate for the defendant/applicant.

Mr. Nilay Sengupta, Mr. Sujit Banerjee, Advocates for plaintiff.

The Court : This is an application by the defendant in a

testamentary suit for amendment of the affidavit in support of caveat

which is now treated as the written statement. The proposed amendments

are shown in a copy of the affidavit which is annexed to the application

and marked as Annexure 'A'. In paragraph 15 of the affidavit as it stands

now the defendant has stated the following :

"15. I state that the signature of the deceased is also very doubtful

as there are some discrepancies which is appearing in the alleged

Will with the admitted signature of the deceased which is in the

possession of the caveator."

In the proposed amendments in paragraphs 16(C), 16(D) and

16(E) the following are sought to be incorporated:

"16C. The alleged Will does not contain the signature of my

deceased father.

16D. Alternatively, the signature of the deceased appearing on the

said alleged Will has been forged.

16E. In the still further alternative and in the event it is being held

that the said alleged Will did contain signature of the deceased, I

say that the deceased had not signed the said document knowing

the same to be his Will or with the intention of executing a Will. The

petitioner had used his proximity to obtain the signature of the

deceased on blank documents and has converted them to the

alleged Will."

On a comparison of the original pleading and the proposed

amendments it is clear that the defendant was doubtful as to the signature

of his father in the Will and had also stated that some discrepancies appear

in the signature of the testator in the alleged Will with the admitted

signature of the testator which is in possession of the caveator, now the

defendant. The proposed amendments, therefore, will not only permit the

defendant to introduce a new plea from that made out in the affidavit in

support of caveat as he did not say that the signature is that of his father

but doubtful which he now alleges to be not the signature of his father. The

introduction of the proposed amendment will be indirectly taking away the

admission as to the doubtful nature of the signature as in paragraph 15 as

it will now read on the amendment being allowed that the Will does not

contain the signature of the testator. Alternatively the defendant intends to

introduce the pleading that the signature of the deceased appearing in the

Will has been forged which is absent in the affidavit at the present. In

paragraph 16E the defendant intends to introduce by way of amendment

the story that the plaintiff's younger brother, the father of the plaintiff used

his proximity to the testator to obtain the signature of the deceased on

blank documents and has converted them to the alleged Will. This is totally

a new stand. In the original affidavit it is not the stand of the defendant

that the signature is forged or the document has been brought into

existence fraudulently. The introduction of the proposed amendment will

not only dilute the original stand of the defendant but will permit the

defendant to retract from his original stand. The proposed amendment in

paragraph 16F is also a new stand where by way of amendment the

defendant wants to introduce that his younger brother in conspiracy and

connivance with the alleged attesting witnesses have caused the instrument

to be manufactured and got it signed by the deceased through the undue

influence to produce the same as a Will. The defendant also intends to

introduce the allegation that the deceased did not sign the Will in question

with understanding or appreciation. These allegations ought to have been in

the original pleading. Even though amendment if written statement is

considered more liberally that of a plaint yet by taking the proposed

amendment as a whole cannot be allowed. The proposed amendments if

permitted to be introduced will not only change the nature and character of

the defence but also the dimension of the suit. The allegation of suspicious

circumstances as sought to be introduced by way of amendment as shown

in paragraph 16(H) is also absent in the original affidavit and if allowed is

also going to change the nature and character of the defence as also the

dimension of the suit. The other proposed amendments are general in

nature which even if not allowed to be introduced will have no impact in

case of proving or objecting to the Will.

It is now well settled that without there being any pleading no

evidence can be led. It is, therefore, necessary to include the whole of the

defence instead of allowing it in piecemeal. Order VIII of the Code of Civil

Procedure, 1908 (in short CPC) clearly stipulates the same. Although, the

Courts are liberal in allowing an amendment for adjudication of all the

issues but at the same time there is a mark of caution to the extent that no

amendment shall be allowed which allows an admission to be withdrawn or

tends to introduce a new case which was totally absent in the original

pleading.

The defendant has cited a judgment reported in (2007) 5 SCC 602

(Usha Balashaheb Swami And Others Vs. Kiran Appaso Swami And Others).

Relying upon paragraphs 17, 18, 19 and 20 of the said judgment the

defendant says that in view of the provision of Order VI Rule 17 the Court is

conferred with power at any stage of the proceedings to allow alteration and

amendment of the pleading if it is of the view that such amendment may be

necessary for determining the real question of controversy between the

parties. There is no quarrel as to the ratio laid down in the said judgment.

At the same time the ratio has to be applied to the facts of the case. The

proposed amendment should be such that it does not alter the stand or

permit the defendant to withdraw any admission already made. The

question of no prejudice to be caused to the plaintiff as held in Usha

Balashaheb Swami (supra) is also not applicable in the facts of the instant

case as on a comparative analysis of the original pleading with the proposed

amendments as aforesaid it is clearly evident that introduction of the case

by way of proposed amendment will not only cause prejudice to the plaintiff

but is likely to change the dimension of the suit by introduction of new

points of defence. Moreover, by allowing such amendments the provisions of

Order VIII of the CPC will be rendered otiose. There will be no end to the

pleading if amendments as proposed by the defendant are permitted to be

introduced. The whole basis of admission and denial and specific pleading

of one's case as laid down in Order VIII of the CPC will be rendered

inconsequential.

In the aforesaid facts and circumstances, the proposed

amendments are disallowed. The application being GA 5 of 2023 is

dismissed, however, without any order as to costs.

Since I have not called for any affidavit, the allegations contained

in the application are deemed to have not been admitted by the plaintiff.

(ARINDAM MUKHERJEE, J.)

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