Kanchan Bai (Smt.) vs Hemchandra and Others

N.K. Mody, J.—Being aggrieved by the order dated 17/01/2013 passed by VI additional District Judge, Indore in Civil Suit No. 45-A/2009, whereby application filed by respondent No. 1 under Order VI Rule 17 of C.P.C. was allowed and respondent No. 1 was permitted to make amendment in the cause title and also in the body of the plaint, present petition has been filed. Short facts of the case are that respondent No. 1 filed a suit for declaration, partition and possession. In the said suit name of the petitioner was shown as wife of Omprakash. This suit was filed in the year 2000. Thereafter an application for amendment was filed in the year 2012, wherein it was prayed that the respondent No. 1 be permitted to amend the cause title by putting the name of Ramkishan Saini as husband of the petitioner. Amendment was also sought in the body of the plaint.

The contention of the respondent No. 1 was that since Omprakash was married to Shailbala, who is respondent No. 8, therefore, petitioner cannot be the wife of Omprakash.

The application was opposed, but allowed, hence this petition.

Learned counsel for the petitioner submits that the impugned order is illegal, incorrect and deserves to be set aside. Learned counsel submits that the petitioner is the widow of Omprakash and is wedded wife of Omprakash. It is submitted that petitioner is the mother of the children from Omprakash, who are studying in the school. It is submitted that without holding any inquiry learned Court below was not justified in allowing the application filed by the respondent No. 1. It is submitted that the petition filed by the petitioner be allowed and impugned order be set aside.

Shri S.S. Garg, learned counsel for respondent No. 1 submits that it is true that initially suit was filed wherein the petitioner was shown as widow of Omprakash but later on when the written statement was filed by respondent No. 3, Ravindranath, before the learned Court below then respondent No. 1 came to know that petitioner is not legally wedded wife of Omprakash. It is submitted that in the circumstances, the application was filed which was rightly allowed. It is submitted that the petition has no merit and the same be dismissed.

From perusal of the record, it appears that the dispute between the parties relating to rights in the properties and to be decided on the basis of evidence which shall be adduced by the parties before learned Court below. Since petitioner was shown as widow of Omprakash right from beginning of litigation, therefore, only because the respondent No. 1 came to know that petitioner is not legally wedded wife of Omprakash, cannot be permitted to amend the cause title and body of the plaint as the status of a lady in the society is paramount consideration whether she is entitled for the share in the property being a widow or not, is secondary, but only because she is not legally wedded wife as per respondent No. 1, amendment application cannot be allowed.

In view of this, the petition filed by the petitioner is allowed and the impugned order, so far as it relates to incorporate the amendment in the title of the suit, is quashed.

The respondent No. 1 shall be at liberty to lead evidence to prove that the petitioner is not a legally wedded wife of Omprakash. With the aforesaid, petition stands disposed of.