Asharaf Ali vs Kaneez Fatima And Ors

Sanjay K. Agrawal, J

This writ petition under Article 227 of the Constitution of India is directed against the order dated 11/01/2019 passed in Civil Suit No. 155A/17 wherein learned 6th Civil Judge Class-I, Raipur has granted the application under Order 6 Rule 17 read with Section 151 of CPC for amendment in the plaint, filed by the legal heirs of the deceased plaintiff i.e. Kaneez Fatima, who were later impleaded as plaintiffs in the suit.

Learned counsel for the petitioner/defendant No. 4 submits that the proposed amendment has changed the nature of the suit therefore, it ought not to have been granted by the learned trial Court.

I have heard learned counsel for the petitioner, considered his submissions and went through the records with utmost circumspection.

The original plaintiff - Kaneez Fatima filed a bare suit on 06/05/2017 seeking declaration that 'Hiba' (oral gift) dated 09/05/2016 executed in favour of the defendant is null and void. The original plaintiff - Kaneez Fatima died on 05/11/2017, thereafter, her legal heirs i.e. respondents No. 1(a) to 1(e) were brought on record. They moved an application seeking additional relief of permanent injunction which has been granted by learned trial Court. Her legal heirs also claimed by way of the amendment that the original plaintiff - Kaneez Fatima had given the entire property to them by 'Hiba'. The objection on behalf of defendant No. 4 is that no such 'Hiba' was disclosed by the original plaintiff, while filing the civil suit.

In the considered opinion of this Court, defendant No. 4 is at liberty to make consequential amendment in his written statement and take all possible defense which he is entitled to, in accordance with law. The amendment sought for and granted cannot be questioned as that would avoid the multiplicity of the suit particularly, when the suit is at its initial stage.

With the aforesaid observations, this writ petition stands dismissed without noticing to the other side. No cost(s).