Dilip Kumar Seth, J. - (1.) AGAINST the judgment and decree passed on 26th July 1987 in Suit No. 743 of 1984, Civil Appeal No. 291/87 was preferred. In the said appeal an application for amendment was made. The said application for amendment was rejected by order dated 7th Sept. 1990, which has been challenged in this petition. At the initial stage Sri Jai Krishna Tewari, learned counsel holding brief of Shashi Nandan, learned counsel for the petitioner prays that he may be allowed to convert this petition into one under Article 227 of the Constitution. Leave is granted. He may correct the cause title in the course of today. Sri Tewari submits that the order refusing amendment appears to be perverse and illegal which amounts to refusal to exercise jurisdiction and, therefore the order should be set aside.
(2.) SRI J.S. Pandey, learned counsel appearing on behalf of the respondent on the other hand contends that the application for amendment being delayed and the plaintiff being guilty of laches and negligence, amendment can not be allowed. According to him the petitioner was very much aware of the Will itself, which came into existence even before filing of the suit. Therefore it was very much in the knowledge of the plaintiff who should have taken steps for inclusion of the Will in the suit itself. At the same time he contends that the said deed was on record of the suit and the evidences were led with regard to the Will, but still then no pleadings were included in the plaint with regard to the said Will. The ground that the lawyer should have included the pleading on the basis of Will which was handed over to the lawyer, according to him, is not a sufficient ground which could have explained the delay and laches on the part of the petitioner. Sri Tiwari, learned counsel on the other hand contends that the petitioner had depended on his lawyer who should have included the same in the plaint. He was never aware that the same was not included and when the plaintiffs were not sufficiently acquainted with the legal procedure, therefore the same should be treated as sufficient ground.
(3.) HAVING heard both the learned counsel for the parties at some length, it appears that the Will was brought on record on 20th May 1985 and was kept in safe custody and the appeal was filed in the year 1987. But the application for amendment was filed only in the year 1990. Thus on the ground of delay, negligence and laches the trial court had refused the prayer for amendment. Admittedly the Will had come in operation even before filing of the suit and the Will was filed in the suit and evidences were led but still no pleadings were incorporated, that might be a ground for refusing the amendment. Then again appeal was preferred in 1987 and till 1990, the plaintiff appellant had waited for seeking amendment which might be the another ground that works against the conduct of the plaintiff.;