Decided on February 16,1988

Kantilal Hargovandas Appellant
Maniramdasji Guru Narayandasji Respondents

Referred Judgements :-



A.P. Ravani, J. - (1.)- What is rejected by the trial Court ? Is it an application for permitting to file counter-claim under the provisions of Order 8 Rule 6A of the Code of Civil Procedure or an application for inserting amendment in written statement under Order 7 Rule 17 of the Code of Civil Procedure ? Answer to this question will determine the fate of this revision application.
(2.)Respondent No. 1 filed Miscellaneous application and prayed that he be granted probate and or letters of administration with Will annexed, in respect of Will dated 5th Dec., 1979 executed by deceased Shri Ramanand Sadhu. The application was contested by the petitioner herein and by respondent No. 2. Hence the application was converted into suit as per order dated 3rd July, 1980 and it has been numbered as Civil Suit No. 2096 of 1980. The petitioner filed his written statement and disclosed his defence on 12th March, 1981. Thereafter the trial Court framed issues and proceeded to record evidence of the parties. Examination of the evidence of the plaintiff was over on 22nd March, 1984. On 26th March, 1984 the petitioner preferred two applications Exh. 42 and Exh. 44. By Exh. 42 he prayed that an additional issue be framed as follows :
"Does the defendant No. 2 prove the Will dated 15th Dec., 1979 executed in his favour and as such is he entitled to probate or limited letters of administration as prayed for in written Exh. 17 ?"
By Exh. 44 which is purported to be an application for amendment under Order 6 Rule 17 of the CPC, he prayed to insert averment in para 17 of the written statement to the effect that he has become entitled to obtain probate or letters of administration with Will annexed. Both the aforesaid applications have been rejected by the trial Court by two separate orders. Against the aforesaid orders, rejecting the applications, passed by the trial Court this revision application is filed by the petitioner, original defendant No. 2.
(3.)It is contended that the application for amendment could have been filed at any stage of the proceedings and the same should not have been rejected by the trial Court. The trial Court committed gross error and or illegality in holding that defendant No. 2 was trying to fill up the lacuna left out in the defence and in holding that since the application was given at a late stage it was required to be rejected. In the submission of the learned counsel for the petitioner, necessary averments with regard to the Will dated 15th Dec., 1979 executed by Shri Ramanand Sadhu in favour of the petitioner (defendant No. 2) have already been made in written statement and thereafter there are no question of the plaintiff being prejudiced or being taken by surprise. Therefore the learned counsel for the petitioner submits that the trial Court has failed to exercise the jurisdiction vested in it. At any rate in his submission, the trial Court has committed grave irregularity and or illegality in rejecting the applications for amendment. It is further submitted that once the amendment is granted and her application for raising additional issue ought to have been granted as a necessary corollary. The contention raised by the petitioner cannot be accepted for the following reasons.

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