The Single Bench of the Delhi High Court in the case of V.K. Sawhney vs The State consisting of Justice Neena Bansal Krishna held that amendment under O6R17 CPC can be permitted in terms of the proviso to O6R17 CPC after the commencement of the evidence only if it can be held that the same could not have been made despite exercise of due diligence.
Facts
This application under O6R17 CPC read with Section 151 CPC was filed by the petitioner for amendment of the plaint.
This probate petition was filed seeking probate in respect of the last Will dated 10.01.2011 by late Smt. Shanti Sawhney, the mother of the parties i.e., Smt. Shanti Sawhney in respect of her 50% of her share in respect of a property in New Delhi. It was submitted that she had also executed a previous Will dated 09.09.2008 in favour of the petitioner. However, the petitioner by way of abundant caution, sought to modify the Prayer clause of the petition.
Contentions Made
Respondent: It was contended that the proposed amendment introduces a fresh cause of action and changes the nature of the petition itself. It was also contended that the proposed amendment is not necessary to determine the real question of controversy in respect of alleged Will dated 10.01.2011. It was also contended that the petitioner himself had claimed in the petition (duly supported by his affidavit) that the Will dated 10.01.2011 was the last and final Will and testament of the deceased. So, now after ten years, he cannot be allowed to make an alternate prayer in respect of another Will.
Observations of the Court
The Bench noted that if the amendment was allowed, it would essentially not only change the cause of action and if the alternate prayer was permitted to be made in respect of the Will dated 09.09.2008, but the entire procedure would also have to be re-initiated. Further, it was inherently contradictory in the sense that the Will dated 09.09.2008 was not the last Will of the deceased.
It also observed that the amendment under O6R17 CPC could be permitted in terms of the proviso to under O6R17 CPC after the commencement of the evidence only if it was held that the same could not have been made despite exercise of due diligence. In this case, the Will dated 09.09.2008 was always in the knowledge of the petitioner and was also mentioned in the petition itself. It noted that there was, therefore, no admission on the part of the respondents either with respect to the locus standi of the petitioner to maintain the suit or with respect to the both the wills, as contended in the plaint.
Judgment
Since the evidence had been already commenced and there was no assertion that this amendment could not have been made despite exercising due diligence before the commencement of evidence, the proposed amendment was also barred under proviso to O6R17 CPC. Holding that there was no merit in the application, the Bench dismissed it accordingly.
Case: V.K. Sawhney vs The State
Citation: TEST.CAS. 23/2012
Bench: Justice Neena Bansal Krishna
Decided on: 26th September 2022
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