Chandrashekhar, J. - (1.) Aggrieved of order dated 02.08.2011 passed in Partition Suit No. 33 of 1998 by which the plaintiff has been denied permission to lead evidence consequent upon amendment in paragraph no.4 of the plaint, the plaintiff has approached this Court.
(2.) The petitioner is the plaintiff in partition suit which was instituted for a decree of partition for her share in the suit schedule properties. The plaintiff claims that she is second wife of late Budhan Sao and from the first wife of Budhan Sao, who predeceased him had five sons. They have been made defendants in Partition Suit No. 33 of 1998. In the pending suit when an application under Order VI Rule 17 C.P.C was dismissed by an order dated 07.01.2011, the plaintiff came to this Court in W.P.(C) No. 841 of 2011. The writ petition stood allowed vide order dated 28.03.2011 and, consequently the plaintiff was permitted to incorporate the following averments in paragraph no. 4 of the plaint : "Bsudeo Sao, defdt. no. 1, obtained Regd. Power of Attorney, dated 13/05/94, 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 plff. 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 25/06/98, during pendency of the instant suit, towards Provident Fund and Gratuity amount of deceased Budhan Sao. The Original Power of Attorney dated, 13/05/94, 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. Defdt. 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 uptodate, 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. Defendt. Nos. 1 to 5, executed agreement, dated 13/05/94, in favour of the plaintiff, which was filed by the plff. accompanied by list, dated 12/02/2003, in this suit, and C.C. of Regd. Power of Attorney was filed by the plff. on, 31/08/1998, accompanied by petition. Power of Attorney and agreement, both decide terms of agreement between parties to the instant suit."
(3.) The defendants were permitted to file additional written statement to the amended plaint and thereafter the plaintiff filed an application for leading further evidence, in view of the amendment in paragraph no. 4 of the plaint. This application has been declined by the trial Judge vide impugned order dated 02.08.2011 on the ground that in W.P.(C) No. 841 of 2011, this Court did not permit the plaintiff to lead further evidence.;