Punjab-Haryana High Court
Inder Mohan Verma Since Deceased ... vs Santosh Kumari And Ors on 15 March, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
127 2024:PHHC:037630
In the High Court of Punjab and Haryana, at Chandigarh
Civil Revision No. 3609 of 2023
Date of Decision: 15.03.2024
Inder Mohan Verma alias Chajju Ram (Deceased) through his Legal
Representative and Others
... Petitioner(s)
Versus
Santosh Kumari and Others
... Respondent(s)
CORAM: Hon'ble Mr. Justice Anil Kshetarpal.
Present: Mr. Chetan Bansal, Advocate
for the petitioner(s).
Mr. Mohit Kakkar, Advocate
for Mr. Bhupinder Ghai, Advocate
for respondent No.1 and 2.
Anil Kshetarpal, J.
1. In this revision petition, defendant No.1 to 3 challenge the
correctness of the trial Court's order dated 17.05.2023 refusing to permit
them to amend the written statement in order to incorporate the necessary
averments with regard to the registered Will dated 29.09.2014 allegedly
executed by late Sh.Inder Mohan Verma alias Chajju Ram in favour of Nina
Rani wife of defendant No.2-Vijay Kumar and defendant No.4-Suresh
Kumar Verma.
2. There are two separate suits pending between the parties. One
suit is filed by two daughters of late Sh. Inder Mohan Verma, whereas
another suit has been filed by defendant No.4-Suresh Kumar Verma. In the
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suit filed by defendant No.4-Suresh Kumar Verma son of late Sh. Inder
Mohan Verma, the Will dated 29.09.2014 has already been made a part of
the written statement filed by defendant No.2 and 3, namely Vijay Kumar
son of late Sh. Inder Mohan Verma and Bharat Kumar son of Vijay Kumar.
Whereas, in the suit filed by the daughters of late Sh. Inder Mohan Verma,
Vijay Kumar and Bharat Kumar have failed to incorporate the assertion in
their written statement with respect to the alleged Will. Hence, an
application for permission to amend the written statement was filed, which
was dismissed by the Trial Court on the ground that the trial has already
commenced and the plaintiffs have already examined as many as seven
witnesses.
3. Heard the learned counsel representing the parties at length and
with their able assistance, perused the paper-book.
4. The learned counsel representing the petitioners contends that
the Will dated 29.09.2014 is a registered Will and it has already been made a
part of the pleadings in the connected suit. The learned counsel submits that
respondent No.1 and 2 (the plaintiffs) can be compensated by imposing
some cost, however, the petitioners should not be deprived to bring on
record the facts.
5. Per contra, the learned counsel representing respondent No.1
and 2 submits that as per the proviso to Order VI Rule 17 of the Code of
Civil Procedure, 1908 (hereinafter referred to as "CPC"), after the
commencement of trial, the Court should not permit amendment.
6. This Court has considered the submissions made by the learned
DEEPAK KUMAR BHARDWAJcounsel representing the parties.
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7. In this case, it appears that the petitioners have, by inadvertent
mistake, failed to incorporate the factum of the alleged Will which has
already been made a part of the pleadings in the connected suit. It is well
settled that the rules of procedure are the handmaids of justice. An
application for bringing on record the substantive facts by way of
amendments, which effects the merits of the case, should not be refused only
on the procedural defaults. Reliance can be placed on the judgment of the
Supreme Court in Life Insurance Corporation of India v. Sanjeev Builders
Private Limited and Another 2022 AIR (Supreme Court) 4256. In para 70
of the aforesaid judgment, the Supreme Court has culled out the following
tests, which are required to be applied before allowing the amendment:-
"70. Our final conclusions may be summed up thus:
(i) Order II Rule 2 CPC operates as a bar against a
subsequent suit if the requisite conditions for application
thereof are satisfied and the field of amendment of pleadings
falls far beyond its purview. The plea of amendment being
barred under Order II Rule 2 CPC is, thus, misconceived and
hence negatived.
(ii) All amendments are to be allowed which are necessary
for determining the real question in controversy provided it
does not cause injustice or prejudice to the other side. This is
mandatory, as is apparent from the use of the word "shall", in
the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed.
2024.03.20 10:43 (i) if the amendment is required for effective and
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proper adjudication of the controversy between the
parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to
the other side,
(b) by the amendment, the parties seeking
amendment does not seek to withdraw any clear
admission made by the party which confers a right
on the other side and
(c) the amendment does not raise a time barred
claim, resulting in divesting of the other side of a
valuable accrued right (in certain situations).
(iv) A prayer for amendment is generally required to be
allowed unless-
(I) by the amendment, a time barred claim is sought to
be introduced, in which case the fact that the claim would
be time barred becomes a relevant factor for
consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid
defence.
(v) In dealing with a prayer for amendment of pleadings, the
court should avoid a hypertechnical approach, and is ordinarily
DEEPAK KUMAR BHARDWAJ required to be liberal especially where the opposite party can
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be compensated by costs.
(vi) Where the amendment would enable the court to pin-
pointedly consider the dispute and would aid in rendering a
more satisfactory decision, the prayer for amendment should be
allowed.
(vii) Where the amendment merely sought to introduce an
additional or a new approach without introducing a time barred
cause of action, the amendment is liable to be allowed even
after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is
intended to rectify the absence of material particulars in the
plaint.
(ix) Delay in applying for amendment alone is not a ground
to disallow the prayer. Where the aspect of delay is arguable,
the prayer for amendment could be allowed and the issue of
limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or
the cause of action, so as to set up an entirely new case, foreign
to the case set up in the plaint, the amendment must be
disallowed. Where, however, the amendment sought is only with
respect to the relief in the plaint, and is predicated on facts
which are already pleaded in the plaint, ordinarily the
amendment is required to be allowed.
(xi) Where the amendment is sought before commencement of
2024.03.20 10:43 trial, the court is required to be liberal in its approach. The
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court is required to bear in mind the fact that the opposite party
would have a chance to meet the case set up in amendment. As
such, where the amendment does not result in irreparable
prejudice to the opposite party, or divest the opposite party of
an advantage which it had secured as a result of an admission
by the party seeking amendment, the amendment is required to
be allowed. Equally, where the amendment is necessary for the
court to effectively adjudicate on the main issues in controversy
between the parties, the amendment should be allowed. (See
Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC
OnLine Del 1897)"
8. It is evident that in this case, the prayer for permission to amend
the plaint is neither malafide nor irrelevant. The dispute is with regard to the
property left behind by late Sh. Inder Mohan Verma. Hence, the Will, if any,
left behind by late Sh. Inder Mohan Verma is required to be examined by the
Court.
9. Keeping in view the aforesaid facts, the present revision
petition is allowed. The impugned order dated 17.05.2023 is set aside and
the petitioners are permitted to amend the written statement subject to
payment of cost of ₹5,000/- to the opposite party.
(Anil Kshetarpal)
Judge
March 15, 2024
"DK"
Whether speaking/reasoned :Yes/No
Whether reportable : Yes/No
