Bela M. Trivedi, J. - (1.) THE present writ petition filed under Articles 226 & 227 of the Constitution of India is directed against the order dated 21.11.2013 passed by the Civil Judge (Senior Division) Kumher, Bharatpur (hereinafter referred to as "the trial court") in Civil Suit No. 351/2011, whereby the trial court has dismissed the application of the petitioners -defendants seeking amendment in the written statement under Order VI Rule 17 of CPC.
(2.) IN the instant case, it appears that the petitioners -defendants and the respondent No. 2 are the sisters, and the respondent No. 2 -plaintiff has filed the suit seeking declaration and injunction in respect of the suit properties against the petitioners -defendants, on the basis of a will executed by her father in her favour on 24.01.2007. In the said suit, the petitioners -defendants had filed the written statement, challenging the validity of the will and praying for the dismissal of the suit. The trial court after framing the issues from the pleadings of the parties, had proceeded further with the recording of evidence. It appears that after the evidence of the respondent -plaintiff was concluded, the trial court had granted time to the petitioners -defendants to lead their evidence, however the petitioners instead of producing the witnesses, had submitted an application under Order VI Rule 17 seeking amendment in the written statement. The said application has been dismissed by the trial court vide the impugned order. It has been sought to be submitted by the learned counsel Mr. Rahul Kamwar for the petitioners that the petitioners -defendants had already taken up the contention with regard to the validity of the will, in the written statement, however the said contention was required to be explained, and therefore, the amendment was proposed. He has submitted that by permitting the proposed amendment, the nature of defense was not going to be changed nor the case of the respondent -plaintiff was to be prejudiced, and on the contrary the proposed amendment is necessary for the purpose of determining the real controversy between the parties. Placing heavy reliance on the various judgments of the Apex Court more particularly in case of Abdul Rehman and Anr. v. Mohd. Ruldu and Ors., : 2012 AIR SCW 5419, Mr. Rahul Kamwar for the petitioners, submitted that though factual matrix as regards the will was already on record, the amendment was required to be granted taking the liberal view in the matter. He also submitted that the application seeking amendment should not be disallowed merely because the same was filed after the commencement of the trial court. He has also relied upon the decisions of Apex Court in case of Rajesh Kumar Aggarwal v. K.K. Modi and Ors., : AIR 2006 (SC) 1647 and in case of Dondapati Narayana Reddy v. Duggireddy Venksatanarayana Reddy and others, : AIR 2001 Supreme Court 3685. However, the learned counsel Mr. N.C. Sharma, for the respondent -plaintiff submitted that the trial court has rightly dismissed the application of the petitioners -defendants considering the proviso to Order VI Rule 17 of CPC.
(3.) BEFORE adverting to the contentions raised by the learned counsel for the petitioners, it would be necessary to reproduce the provision for the amendment of pleading contained in Order VI Rule 17 of CPC, which reads as under: - - "17. Amendment of pleadings. - -The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.";