Babina Devi and Another vs Rajbir Singh and Others

A.N. Jindal, J.—This petition assails the order dated 20.12.2010 passed by the trial court dismissing the application for amendment of the plaint after issues were framed. The Petitioners have sought amendment of the plaint seeking to correct some typographical mistakes and also some explanation to their averments.

The facts in the background of the case are that the Petitioners had filed a suit for declaration with consequential relief of possession against the Respondents claiming that the they are the daughter and the son of late Smt. Bedo @ Bedwanti @ Birmati respectively. She died on 30.1.2002 at village Imlota Tehsil Dadri, Distt. Bhiwani leaving behind them as her legal heirs. Bedwanti was also known as Birmati and was married to Sajjan Singh of village Imlota. Actually she had died on 28.1.2002 but due to oversight they recorded the date of her death as 30.1.2002 in the plaint while picking the same from the Form No. IV filled by village Chowkidar and they came to know about the actual date of her death on receiving certificate from the office of Registrar Births and Deaths, Acheena (Bhiwani) on 22.11.2010. The Petitioners have further requested to insert the name of their mother as "alias Birmati" along with Bedo @ Bedwanti by alleging that she is also known as Birmati. Thirdly, it was alleged that they want to insert the factum with regard to her marriage with Sajjan Singh in para No. 1 of the plaint.

Reply to the application was filed wherein the aforesaid facts were denied and it was pleaded that the Petitioners had filed the present suit on 1.10.2002 and they closed their evidence on 24.12.2009, during this period they never raised any question for amendment of the name of Bedo @ Bedwanti. There is no documentary evidence to prove that she was known by the name of Birmati also. Consequently, they prayed for the dismissal of the suit.

Arguments heard. Record perused.

At the very outset, learned Counsel for the Respondents has urged that the amendment could not be sought after the evidence had commenced and that this application filed at the fag end of the case is just to delay the adjudication of the trial. He has also placed on record many zimni orders in order to highlight the aforesaid argument.

Annexure P-1 reveals that the suit No. 132 was filed on 1.10.2002 in which issues were framed on 1.11.2010. Both the parties admit that the proceedings remained struck in the case due to pendency of appeal or revision during all these years, therefore, the Petitioners cannot be held responsible for the said delay. After the issues were framed on 1.11.2010, the application for amendment was filed on 10.11.2010. The zimni order dated 8.12.2010 reveals that the reply to the application for amendment was filed on that day and the case was adjourned to 15.12.2010. No doubt, statement of Prem Chand (PW1) was recorded on 10.11.2010 but it cannot be said that the application was filed after the evidence had commenced. In any way, there is no absolute bar for filing the application for amendment even after the commencement of the evidence. In this case, it appears that the court withheld the decision on the application and recorded few witnesses, then such delay is not attributable to the Petitioners.

As regards the other argument, with regard to the withdrawal of the other application, it appears that the Petitioners had filed two applications, one on 10.11.2010 and the other on 26.11.2010. It further transpires that vide order dated 15.12.2010, the Petitioners were allowed to withdraw the first application dated 10.11.2010 and the arguments were heard on the application filed on 26.11.2010. Consequently, one application, having been withdrawn and not decided on merits, does not debar the Petitioners to have decision on the second application. Two applications appear to have been filed due to mis-understanding and at the same time, the Petitioners cannot be made to suffer for the fault on the part of the counsel who filed two similar applications.

Now coming to the nature of amendments, it is observed that the amendment with regard to inserting the name of Bedo @ Bedwanti @ Birmati, the Petitioners do not want to change her father''s or husband''s name or name of her village, therefore, some assertions that she was also called as Birmati would not in any way change the nature of the suit. Similarly, since there is no dispute with regard to the date of death, therefore, it appears that the Petitioners want to set the record in order. There is also no dispute with regard to the name of her husband as such the same could also be permitted. Even otherwise, the amendments being minor in nature would not change the nature of the suit and cause any prejudice to the Petitioners. The impugned order appears to have been passed under the impression that the suit is already old but mere pendency of the suit for a long time in the given circumstances of the case, cannot be used as sword to cut the throat of Petitioner''s right when the suit is still at the initial stage.

Resultantly, I accept the petition, set aside the impugned order dated 20.12.2010 and allow the application for amendment of the plaint.