Raj Kishore vs Ram Kishore
1997 Latest Caselaw 938 Del

JUDGMENT

K.S. Gupta, J.

1. On March 28, 1989, plaintiff filed suit for partition etc. claiming 1/9 share in properties No. 1062, 1063-1064, Gandhi Gali, Fateh Puri, he being one of the legal heirs of Kanwar Kishore who died on March 7, 1989. On May 12, 1989, present I. A. for amendment of the plaint was filed by the plaintiff seeking to challenge the Will dated April 12, 1985 allegedly left behind by aforesaid Kanwar Kishore and implied Raj Karan Mehra, Bharat Mehra and Rajat Mehra as defendants 2 (A) to 2 (C). 1/3 share instead of 1/9 in the said properties was further claimed on the basis of the Will dated March 23, 1981 executed by said Kanwar Kishore.

2. In their reply contesting defendants 1 and 2 have alleged that Kanwar Kishore, father of the plaintiff and defendants 1 and 2 executed a Will dated April 12, 1985 which was registered on May 1, 1985 with the Sub-Registrar, Sub-District No.1, Delhi. Dr. S.K. Sama, Surinder Kapoor, Ram Rattan Kapoor and Har Mohan are the attesting witnesses to the Will. As per this Will one-half undivided portion in properties No. 1063-1064 Gandhi Gali has been bequeathed to defendant No.1 while the remaining half to the grand sons of defendant No. 2. Property No.1062 has been bequeathed in favour of the plaintiff. It is alleged that the Kirya ceremony of Kanwar Kishore was performed on March 18, 1989 and after the ceremony was over a copy of the aforesaid Will dated April 12, 1985 was given to the plaintiff in the presence of Ram Mohan and Praveen Kapoor and the same was read by Naresh Bansal. On enquiry, details about the tenants in property No.1062 were told to the plaintiff. Thereafter on March 25 and 27, 1989, plaintiff telephoned defendant No.1 that he wanted to see the original Will and the plaintiff was told by defendant No.1 that the same was with defendant No. 2. On March 23, 1989, plaintiff filed application for obtaining copy of the death certificate in the office of the Corporation it is further alleged that the plaintiff through Vinod Kumar, typist filed application accompanied by a copy of the death certificate of Kanwar Kishore for obtaining the certified copies of the Will dated April 12, 1985 and the earlier Will dated March 12, 1981 of which mention was made in the Will dated April 12, 1985. Further, in his reply dated August 3, 1989 to I.A. No.4246/89 plaintiff has admitted having prepared a typed note for the advice of his Advocate and the hand written note prepared by his Advocate as per the information given by him. Plaintiff thus knew about both the Wills before the filing of the suit. Despite this knowledge he made a false declaration in the plaint that Kanwar Kishore died intestate.

3. It is stated that Kanwar Kishore fell ill on or about March, 1985. On being diagnosed that the was having lever abscess, he was advised to be taken to Sir Ganga Ram Hospital to which Dr. S.K. Sama, under whose treatment he was attached. He was admitted in the hospital on March 30, 1985 and was discharged on April 10, 1985. It is denied that the plaintiff ever visited Kanwar Kishore after he had gone back home or that he or his wife stayed with him at the house as alleged. Till the date of his death Kanwar Kishore was in good health and looking after his affairs and the properties. By seeking the proposed amendments the plaintiff wants to change the entire case which he cannot be allowed under the law.

4. In the rejoinder filed to the reply, plaintiff has denied that after the Kirya ceremony was over copy of the Will dated April 12, 1985 was given to him by defendant No. 1 in the presence of Ram Mohan and Praveen Kapoor or that the same was read by Naresh Bansal or that on enquiry he was told about the details of the tenants in property No. 1062 as alleged. It is further denied that either on March 25 or March 27, 1989 plaintiff telephoned defendant No. 1 that he wanted to see the original Will and he was told that the same was with defendant No.2. It is stated that Murari Lal who was the old Muneem of the family, was requested by the plaintiff to bring the death certificate of Kanwar Kishore. He told the plaintiff that defendants 1 and 2 had also asked him to obtain the death certificate. One copy of the death certificate bearing No. 24325 was handed over to the plaintiff by Murari Lal. It is emphatically denied that on March 27, 1989 plaintiff through Vinod Kumar, typist or any other person filed application for obtaining certified copies of the Wills of Kanwar Kisore. Plaintiff does not know any person by the name of Vinod Kumar. It is stated that as submitted in the reply to I.A. 4246/89, defendants 1 and 2 filed application under Order 39, Rule 4, CPC accompanied by a copy of the Will dated April 12, 1985. Copies of the application and the Will were handed over to the plaintiff's Counsel by the Counsel for defendants 1 and 2. On certain enquiries being made about the family, plaintiff handed over a typed note to his ounsel. Defendants 1 and 2 are guilty of stealing that note from the file of the plaintiff from the office of his Lawyer M.Valmilki Mehta. Even otherwise note in question which is a privileged document cannot be used by defendants 1 and 2 against the plaintiff. It is emphatically denied that the plaintiff knew about the execution of the Will dated April 12, 1985 before the filing of the suit as alleged.

5. Contention advanced by the learned Counsel of the contesting defendants was two-fold. First, that the plaintiff filed the suit falsely alleging that Kanwar Kishore died intestate though he knew that he had left behind him Will dated April 12, 1985. In support of the submissions my attention was drawn to the following facts/circumstances:

(i) that after the Kirya ceremony of deceased Kanwar Kishore on March 18, 1989, defendant No. 1 gave a copy of the aforesaid Will to the plaintiff and the same was read by Naresh Bansal. On enquiry plaintiff was told the approximate amount of rent of property No. 1062;

(ii) on March 25 and 27, 1989 plaintiff telephoned defendant No. 1 that he wanted to see the original Will and he was told that the same was with defendant No. 2;

(iii) plaintiff filed application accompanied by a copy of the death certificate for obtaining certified copies of the Wills dated April 12, 1985 and March 23, 1981 through Vinod Kumar, typist and;

(iv) plaintiff handed over a typed note dated March 18, 1989 to his Counsel which touched certain aspects of the plaint and quarry concerning the Will.

Second, that the proposed amendments seek to introduce a new case which cannot be legally permitted to be set up by the plaintiff. Reliance was placed on N.F. & G. Ins. Co. Vs. Mool Singh, AIR 1951 Simla 227, Gopalakrishnamurthi Vs. Sreedhara Rao, , Chet Ram Vs. Ram Singh, AIR 1922 Privy Council 249, Seshamma Vs. Seshadri , Narshiprasad Vs. Vidutray (FB) AIR 1954 Saurashtra 66, Bhubaneswar Vs. Janak, and Neera Gorver Etc. Vs. Narinder Jaggi, RLR 1982 Delhi 18.

6. It is pertinent to note that the present I.A. was filed within 1 1/2 months of the filing of the suit and the written statements are yet to be filed by the defendants.

7. Law on amendment of pleadings is well settled by a catena of decisions of the Supreme Court. In Pirgonda Hangonda Patil Vs. Kalgonda Shidgonda Patil & Ors., 1957 SC 363 their Lordships have held:

"All amendments ought to be allowed which satisfy the two conditions, (a) not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which would not be compensated in costs by depriving him of a good defense to the claim. The ultimate test, therefore, still remains the same, can the amendment be allowed without injustice to the other side, or cannot?"

8. In Jai Ram Manohar Lal Vs. National Building Material Supply, Gurgaon, it was held that:

"Rules of procedure are intended to be a hand-maid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side. There is no rule that unless in an application for amendment of the plaint it is expressly averred that the error, omission or misdescription is due to a bona fide mistake, the Court has no power to grant leave to amend the plaint. The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations."

9. In Haridas Aildas Thadani & Ors. Vs. Godrej Rustom Kermani, AIR 1983 SC reiterating the principles laid down in Pirgonda Hongonda Patil's case (supra) it was held:

"The Court should be extremely liberal in granting prayer of amendment of pleading unless serious injustice or irreparable loss is caused to the other side. A revisional Court also ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstances."

10. In Ishwardas Vs. The State of Madhya Pradesh & Ors., , their Lordships have held:

"That delay by itself cannot be a ground for refusing an application for amendment and an amendment may be allowed even at a belated stage like in an appeal."

In Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay & Anr., , it was held:

"An admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn.

Trial Judge, granting the application for amendment was satisfied that in order to effectively adjudicate upon the dispute between the parties, amendment of the pleading was necessary, and, therefore, the High Court ought not to have interfered in its revisional jurisdiction".

11. Now I proceed to examine the facts of the case in the light of the law laid down in the aforesaid decisions.

12. Plaintiff and defendants 1 and 2 are the sons while defendants 6 to 10 are the daughters of late Kanwar Kishore. Defendants 3 to 5 are the sons and daughters of late Smt. Rani Kapoor, another daughter of the deceased. It is alleged in the plaint that in a final partition in the year 1968, properties No.1062, 1063-1064, Gandhi Gali, Fatehpuri, fell to the share of aforesaid Kanwar Kishore who died intestate on March 7, 1989. Plaintiff being one of his legal heirs is entitled to 1/9 share in the suit properties alongwith defendants 1 and 2 and defendants 6 to 10. Defendants 3 to 5 are entitled to 1/27 share each in the properties. Decree for partition of the three properties has been claimed in the above proportions by the plaintiff. Kanwar Kishore is alleged to have left behind Will dated April 12, 1985, by the contesting defendants and under the Will one-half share in properties No.1063-1064 has been bequeathed in favour of defendant No. 1 while the remaining half in favour of grandsons of defendant No.2. Property No.1062 is stated to have been bequeathed in favour of the plaintiff. Earlier Will dated March 23, 1981 executed by Kanwar Kishore deceased is stated to have been revoked by the aforesaid Will dated April 12, 1985. By the proposed amendments, plaintiff seeks to challenge the aforesaid Will dated April 12, 1985 and claim 1/3 share in the properties alongwith defendants 1 and 2 as per the Will dated March 23, 1981. In view of the stand taken by the contesting defendants about the execution of the alleged Will dated April 12, 1985 and also existence of the earlier Will dated March 23, 1981, the amendments sought are absolutely necessary for the purpose of determining the real question of controversy between the parties. Assuming for the sake of argument that execution of the Will dated April 12, 1985 was within the knowledge of the plaintiff on the date the suit was filed and he negligently pleaded of aforesaid Kanwar Kishore having died intestate, still the proposed amendments can be allowed as they can be made without injustice to the defendants. Suit is at its preliminary stage. Proposed amendments thus deserve to be allowed. Aforementioned decisions relied on behalf of the contesting defendants are of little help to them.

For the foregoing discussion, I.A.3683/89 is allowed subject to payment of Rs. 500/- as cost. Plaintiff is permitted to carry out amendments in question as detailed in para No. 22 of the application. Raj Karan Mehra, Bharat Mehra and Rajat Mehra, grandsons of defendant No. 2 who are the beneficiaries to the extent of one-half share in aforesaid properties 1063-1064 under the alleged Will dated April 12, 1985, are allowed to be impleaded as defendants 2(A) to 2(C).