Ram Puri Chela vs Smt. Usha Sharma and others

Hon''ble B.S. Verma, J.

(Amendment Application No. 8709 of 2012)

(Amendment Application No. 8693 of 2012)

Heard learned counsel for the parties on the amendment application. The appellant has moved amendment application No. 8709 of 2012 with a prayer to permit the appellant to writ the word "dead) after the names and addresses of respondent No. 2, 3, 4 and 6 in the memo of parties in appeal. The appellant has further prayed to add a new para No. 25A after paragraph No. 25 to the memo of appeal.

It is not disputed that during the pendency of appeal, the respondent Nos. 2, 3 4 and 6 have already died.

Having heard the submissions of the learned counsel for the appellant as well as the learned counsel for the respondents, in the interest of justice, the amendment application deserves to be partly allowed in so far as the appellant prays for to add the word "deceased" against the names and addresses of the aforesaid deceased respondents. The amendment is partly allowed.

So far as by the amendment the appellant wants to add a new para No. 25A to the memo of appeal, the amendment to that extent cannot be allowed because the appellant has raised new plea regarding the will in question and such an amendment would change the nature of the case. This prayer is rejected.

Accordingly, the amendment application No. 8709 of 2012 is partly allowed. The appellant is directed to incorporate the amendments in the memo of parties and the amended memo of parties be filed within a period of one week.

The appellant has also moved amendment application (No. 8693 of 2012) and by the amendment, the appellant wants to amend the memo of parties in the plaint owing to the death of the plaintiff-appellants as mentioned in the amendment application. In addition, the appellant also seeks permission to add paragraph 10C after para 10B to the plaint.

Having heard the submission of the learned counsel for the parties on amendment application No. 8693 of 2012, in the interest of justice, the amendment as sought under prayer clause (a), (b) and (c) of the amendment application is allowed and the appellant-plaintiff is permitted to amend the memo of parties in the plaint owing to the death of some of the parties to the suit during the pendency of the appeal.

So far as the prayer to add a new para No. 10C to the plaint is concerned, The Original Suit No. 92 of 1978 was dismissed by judgment and decree dated 18-4-1998 by the Civil Judge (Senior Division) Haridwar and this appeal was filed in the year 1998 before the Allahabad High Court, which was subsequently transferred to this Court after creation of the new State of Uttarakhand for disposal. The appeal is at the stage of final hearing, therefore, by way of amendment the plaintiff-appellant cannot be allowed to take up a new case from that already pleaded in the plaint so as to add para 10C after paragraph 10B to the plaint, therefore, this part of the prayer made in the amendment application is rejected.

Amendment application No. 8693 of 2012 is partly allowed and the plaintiff appellant is permitted to mention the word "deceased" against the name and address of the deceased plaintiff and deceased defendants, as mentioned in the amendment application.

Necessary amendments be incorporated by the plaintiff-appellant within a period of one week. List the appeal on 3-10-2012 as prayed for by the learned counsel for the parties.