- (1.) THE present writ petition has been preferred against the order passed by the learned Sub -Judge -III, Giridih dated 7th January, 2011 in Partition Suit No. 33 of 1998 whereby, an amendment application preferred by the present petitioner, who is an original plaintiff, under Order VI Rule 17 of the Code of Civil Procedure has been dismissed.
(2.) THOUGH the notice was issued by this Court on 21st February, 2011 to be served by personal service, only respondent no. 3 has accepted the notice, but, he has not chosen to appear before this Court. So far as the rest of the respondents are concerned, they have refused to accept the notice of this Court and an affidavit to that effect has also been filed by the counsel for the petitioner. In view of this fact, respondents are treated to have been served.
(3.) HAVING heard counsel for the petitioner and looking to the facts and circumstances of the case, it appears that the petitioner wants to add after the end of paragraph no. 4 of the plaint, which reads as under: - "Basudeo Sao, Defdt. No.1, obtained Regd. Power of Attorney, dated 13.5.94, from the Plaintiff and Defendant Nos. 2 to 5, in which the defendant Nos. 1 to 5, admitted, accepted, acknowledged and confirmed the truth and reality, that, Smt. Girija Devi, the plft. of this suit is the second wife of late Budhan Sao, and the Defdt. Nos. 1 to 5, addressed and described Smt. Girija Devi, as widow of late Budhan Sao, and Defdt. No.1, Basudeo Sao, duly empowered and authorised agreed to pay and deliver Rs. 20,000/ - (rupees Twenty Thousand) only to the Plaintiff, Smt.Girija Devi being the dues of Provident Fund and Gratuity of late Budhan Sao. Ultimately, on the advice of Defendant Nos. 1 to 5, the employer of the deceased Budhan Sao paid Rs.20,000/ -to the plaintiff through A/C Payee Cheque No. 0219849, dated 25.6.98, during pendency of the instant suit, towards Provident Fund and Gratuity amount of deceased Budhan Sao. The Original Power of Attorney dated 13.5.94, is lying in the care and custody of Defdt. No.1, Basudeo Sao who refused to deliver the same to the plaintiff on demand. Learned Court called for the Original from the D.S.R., Giridih, who did not produce the same in learned Court till this date. The relevant correspondences form part of Suit Record. Deftdt, Nos. 1 to 5, are well conversant of the glaring and vital facts, that the plaintiff has been coming on withdrawing and receiving the Monthly Pension amount consequent to the death of the employer, Budhan Sao from the office of his employer w.e.f. 1995 to up -to -date, regularly and continuously, in the capacity of the widow of late Budhan Sao to the Notice and knowledge of Defdt. Nos. 1 to 5, who never raised any objection in the office of the employer, viz. Electrical Executive Engineer, Supply Division, Giridih. Defdt. Nos. 1 to 5 executed Agreement, dated,13.5.94, in favour of the Plaintiff, which was filed by the pitt. accompanied by list dated 12.2.2003, in this Suit and C.C. of Regd. Power of Attorney was filed by the Plff. on 31.8.1998, accompanied by Petition. Power of Attorney and Agreement, both decide terms of Agreement between parties to the instant suit.";