Smt. Anshu Mala David Widow Vs Shri Anish Paul & Anr.

2. The present writ petition is directed against the order dated 24.07.2004, passed by the learned Additional District Judge, Fast Track No.2, Ajmer, whereby he had rejected a composite application filed by the plaintiff under Order 6, Rule 17 seeking amendment in the plaint and impleadment of the beneficiaries of the will.

3. The brief facts of the case are that the petitioner-plaintiff filed a suit for partition of the property of her father, namely Mr. Samual G. Paul. During the pendency of the suit proceedings, the defendant, her brother filed a written statement inter alia stating that property in question; belonging to their father, Mr. Samual G. Paul has been bequethed by him in favour of his grand children (sons and daughters of the defendant) vide a will dated 17.7.1989.

4. Coming to know of the factum of the will, the plaintiff filed a consolidated application under Order 6, Rule 17 and Order 1, Rule 10 seeking amendment in the plaint incorporating challenge to the will dated 17.71989 and seeking impleadment of the beneficiaries of the will, namely Smt. Shelet Anita Paul and Anish Paul.

5. The defendants/respondents filed reply to the said application and opposed such amendment and impleadment of the beneficiaries of the will.

6. By way of the order under challenge, learned trial court rejected the said consolidated application, observing therein that amendment and impleadment are unwarranted and such facts and challenge can be brought by the plaintiff, by way of a rejoinder.

7. Learned counsel for the petitioner/plaintiff has argued that the amendment in question laying challenge to the will is necessary for proper adjudication of the ''lis'' between the parties. The suit in question was filed by the plaintiff, for partition of the property of her father and if the will in question is not permitted to be challenged, the suit in question would be rendered meaningless and would lead to multiplicity of litigation. He further submitted that the parties to the suit are common and the plaintiff has sought to implead, none other than the son and daughter of the defendant, in whose favour the property is said to have been bequethed.

8. Counsel for the petitioner has relied upon a judgment of this Court passed in S.B. Civil Writ Petition No.13407/2012 (Vasudev & Ors. v. Anar Devi & Ors.), decided on 20.12.2013 whereby this court has permitted amendment in a suit, for permanent injunction, which amendment has made it a suit for declaration also, though, such amendment was asked for after 17 years.

9. Counsel for the petitioner has also cited judgment of the Hon''ble the Supreme Court, reported in (2004) 6 SCC 415 (Pankaja v. Yellppa) It will be worthwhile, to reproduce the observations made by Hon''ble Supreme Court in para No.14:-

"The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The Jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really sub-serves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case."

"equally clear is the principal that the procedure is the handmain and not the mistress of the judicial process. If a fact arising after the ''lis'' has come to the court and has fundamental impact on the right to relief for the manner of moulding it, is brought deligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decreetal remedy."

(i) Whether the amendment sought is imperative for proper and effective adjudication of the case;

(ii) Whether the application for amendment is bona fide or mala fide ;

(iii) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(iv) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(v) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and.

(vi) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. While holding that the above factors are illustrative and not exhaustive, Hon''ble Court made following observation in para No.64 :- " 64. The decision on an application made under Order 6, Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."

14. Having considered the law on the subject in light of the factual matrix of the case in hand, I am of the considered view that the subject application seeking amendment in the plaint and impleadment of the beneficiaries of the will deserves to be allowed, inasmuch as the plaintiff has learnt about the execution of the will only after looking at such recital in the written statement and for proper adjudication of the rights of the legal representatives of Mr. Samual G. Paul, correctness, genuineness and effect of the will dated 17.07.1987 needs to be examined.

15. The amendment sought for is squarely covered under the ambit of Order 6, Rule 17 of the Code of Civil Procedure and the same is essential rather inevitable for proper, convenient and complete adjudication of the dispute between the parties. It will advance the cause of justice and make the remedy claimed by the plaintiff just and meaningful.

16. Once the amendment in the suit is allowed and a challenge to the will is permitted; which I hereby do, the impleadment as sought by the plaintiff; to array the beneficiaries of the Will in the suit proceedings; as a necessary corollary, becomes imperative.

17. Hence, the writ petition is allowed, the order impugned dated 24.07.2004 is quashed and set aside and the composite application filed by the plaintiff under Order 6, Rule 17, Order 1, Rule 10 read with Section 151 of CPC is allowed.

18. Looking to the fact that the suit in question is pending consideration since 2003, it would be in the interest of justice to issue a direction to the trial court to decide the suit expeditiously.

19. The writ petition is allowed, however without any order as to costs.