S.K. Phaujdar, J. - (1.) IN this proceeding on an application for grant of letters of administration, the parties had adduced evidence long back and the matter is fixed for hearing arguments. At this stage, an application for amending the written statement has been filed by the Respondent allegedly for the purpose of elucidation, elaboration, specification and clarification of the pleadings. It was asserted that the proposed amendment would not change the nature of the defence and as it was a suit in the Testamentary jurisdiction of the Court in which the validity of a Will was under challenge, the Court could always allow the amendment to be incorporated. The Plaintiff objected to the prayer stating that the application was malicious and was directed to delay the proceeding. It was indicated that the petition for letter of administration was presented on 15.3.1990 and pleadings on behalf of the defence had also come. Issues were framed as far back as on 6.2.1991 and on the basis of such issues, evidence was adduced. The Petitioner filed documentary evidence and examined his witnesses and his evidence stood closed on 24.4.1991. The caveator -Respondent also examined four witnesses and her evidence stood closed on 16.7.1991. It was contended that if the amendment be now allowed, the entire case would reopen and in fact a de -novo trial would be necessary. It was further stated that by the amendments, the entire nature of defence was proposed to be changed. The application was stated to be highly belated and was stated to be liable to be dismissed. In the course of arguments on this point, Shri Ajit Kumar, learned Counsel for the caveator -Respondent, submitted that there would be no prayer on his behalf either to press for any restructuring of the issues or for examination of any witness or production of any paper. He also would not seek further cross -examination of the Plaintiff or his witnesses in the light of the proposed amendments. It was only stated that materials are there on record to cover the averments now to be introduced by way of amendments and the caveator -Respondent wants only a pleading -base for being able to rely on those materials. It was contended that delay is of no consideration as an application under Order VI, Rule 17, Code of Civil Procedure may be filed at any point of time. Shri Navin Sinha appearing for the Plaintiff submitted that the Plaintiff was required to deny on oath the factual averments made in the pleading of the defence and if the amendments are now allowed, the Plaintiff must be recalled to deny such averments and in that case, a cross -examination would also be necessary and the matter would be unnecessarily delayed. Shri Ajit Kumar contended that if a factual plea is taken by the defence, it is for the defence to prove it and he referred to Order XVIII, Rule 3 of the Code of Civil Procedure to say that the responsibility of proving the same lay with the defence and the Plaintiff was not to adduce evidence on those points.
(2.) THE learned Counsel also relied on case laws in support of their contentions. Shri Sinha referred to a decision of the Supreme Court as in : AIR 1977 SC 680. In the case before the Supreme Court also, there had been an application for amendment of the written statement by substituting certain paragraphs. The amendment proposed to introduce entirely a different new case seeking to displace the Plaintiff completely from admissions made by the Defendants in the original written statement. The application was rejected. Shri Sinha also relied on a decision of the Allahabad High Court in the case in : AIR 1978 All 46. The High Court in this case rejected an application for amendment of the written statement at a stage after the closure of the Plaintiffs evidence. The amendment was sought on the ground that certain talk went between the Plaintiff and the Defendant. The trial court disbelieved the story and rejected the application for amendment. The High Court confirmed the order of the trial court. Shri Ajit Kumar on the other hand, relied on a decision of the Supreme Court as in : AIR 1969 SC 1267. It was held herein that a party cannot be refused Just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. Shri Kumar contended that in the present case, the pleas now advanced could not be agitated earlier due to mistake or inadvertence and even if it was a negligence, the law does not bar an amendment. Reliance was further placed by Shri Kumar on smother decision of the Supreme Court in : (1979) 4 SCC 163. A question arose before the Supreme Court in this case whether a new plea could be allowed at the appellate stage. In explaining Order VI, Rule 17 of the Code of Civil Procedure, the Supreme Court observed that a new plea can be allowed even at the appellate stage and the appellate court was not always bound to refuse such amendment merely because of absence of necessary materials before it. It was contended by Shri Kumar that the plea of challenging the Will is the basic one, and only an elaboration is to be introduced by the proposed amendment and when even a new plea could be introduced, there could be no bar in introducing an elaboration of the written statement. Further reference was made to the decision as in : AIR 1981 SC 1533. Here also a question of amendment of pleading came up before the Supreme Court. The High Court had allowed the amendment whereafter the Supreme Court was approached. The amendments were prayed on the ground that some properties had not been fully and correctly described in the original plaint. The order of the High Court in allowing the amendment was upheld by the Supreme Court. In this connection, reference was made to a decision of the Allahabad High Court in, AIR 1909 All 34. In the concerned suit, there was a plea by the Defendant that he was the owner of the disputed land. Subsequently he proposed to amend the written statement seeking deletion of that plea and addition of a new plea that the Defendant was owner of the land by adverse possession. The Court held that these amendments should be allowed. In the case in, (1981) 3 SCC 562. the Supreme Court indicated the tests for allowing an amendment. It was observed that the liberal principles which guide the exercise of discretion in allowing amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be readily granted while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendment, that one distinct cause of action should not be substituted for another and that the subject -matter of the suit should not be changed by amendment. Applying these principles, the amendment was allowed. There was also a direction for payment of heavy costs looking to the delay in the prayer for amendment. The Allahabad High Court also held in the case in, 1986 ALJ 211, that amendment by way of addition to facts already on record to elucidate the matter and not in contradiction with them and not changing the case so as to make a new claim on the new basis can always be allowed. Certain other cases were also cited on almost similar points and it may not be necessary to refer to them which would only enlarge the volume of this judgment.
(3.) THE amendments as proposed indicate that the defence wants to introduce a question regarding proper valuation of the claim. Paragraph 4 of the original written statement has been proposed to be elaborated by addition of certain averments challenging the Will in question as forged, fabricated and manufactured and giving details for such challenge. The amendment in paragraph 5 is not of much importance. Paragraph 6 of the written statement was proposed to be amended by challenging the theory of adoption. The amendment in paragraph 7 dealt with this question but on some other ground. The amendment in paragraph 8 again sought to set up the WILL as forged, fabricated and manufactured in collusion with certain persons named therein. The other proposed amendments also cover the right of the Respondent to the property of the deceased and the last proposed amendment deals with a question of residence of Shri Manohar Lal and his migration to U.S.A.;