AI Structured Summary
Not yet generated for this judgment
Judgment
Heard. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned Advocates for the rival parties.
The present petition assails the order dated 04/11/2025, passed by the learned Civil Judge, Senior Division, Nagpur, rejecting application for amendment of plaint filed vide Exh.137 in Regular Civil Suit No.1034/2016.
Application is filed prior to commencement of trial. The suit is a suit for partition and separate possession. The learned Trial Court has observed that application was fourth application for amendment of plaint and earlier three applications filed vide Exhs.7, 69 and 113 were allowed vide orders dated 17/01/2017, 23/06/2017 and 03/04/2022. It is observed that the third amendment application filed vide Exh.113 is a very exhaustive amendment, in which, a prayer was incorporated for seeking declaration that Will dated 12/06/1990 executed by Brijkishore Jaiswal in favour of his wife Shantabai was a forged document and another prayer was made seeking declaration that Gift-deed dated 06/11/2007 and Will dated 16/05/2008, executed by Shantabai were illegal, being an outcome of fraud. The learned Trial Court has recorded that all the facts that were sought to be brought on record by way of amendment were already incorporated in the plaint by virtue of amendment of the plaint vide earlier application at Exh.113.
Mr. Masood Shareef, learned Advocate for the petitioner contends that the suit is a suit for partition and separate possession and there are several transactions which are required to be dealt with in the suit. He contends that although there are pleadings with respect to alleged Will by late Brijkishore Jaiswal and his wife Shantabai Jaiswal being false, relevant circumstances in order to establish the said case were sought to be brought on record by way of amendment. It is contended that the application is by way of elaboration and not a mere repetition. The learned Advocate further contends that the application is filed prior to commencement of trial and therefore, the learned Trial Court should have adopted a lenient approach in allowing application. It is contended that the amendment is essential for just and proper adjudication of the suit.
Per contra, Mr. N.L. Jaiswal, learned Advocate for the respondent No.7 vehemently opposes the petition. He argues that all the contentions sought to be raised are already incorporated by virtue of amendment of plaint on earlier occasions. The learned Advocate contends that the progress of the suit is sought to be arrested by filing repeated applications for amendment.
I have perused the plaint and the application for amendment. It is true that the plaint is amended earlier on three occasions. It is also correct that the third amendment which was allowed on 03/04/2024 is an exhaustive amendment, in which most of the relevant facts have been pleaded and prayers are also incorporated in order to challenge the Will dated 12/06/1990 alleged to be executed by late Brijkishore as also alleged Will dated 16/05/2008 and Gift-deed dated 06/11/2007 executed by Shantabai.
By way of proposed amendment, the plaintiff intends to incorporate pleadings with respect to circumstances which would demonstrate that Brijkishore Jaiswal was not in a fit condition to execute the Will in question. It is sought to be contended that he was suffering from paralysis and was confined to bed since the year 1975. Pleadings in this regard are already there in the plaint. However, by way of further elaboration, it is contended that in the year 1989, there was a property dispute between late Birjkishore and his brother Wanibhushan and since Brijkishore could not contest the suit himself, he had executed power of attorney for contesting the suit in favour of plaintiff on 16/01/1989. It is stated that this power of attorney bears his thumb impression since he was not in a position to sign the same. Reference is also made to property bearing Khasra No.484, which is mentioned in the Will to contend that although this property was already sub-divided into Survey Nos.484/1 and 484/2, mention of Survey No.484 was made in the Will. Likewise, reference is made to property bearing Khasra No.42, which according to the plaintiff was sold by late Fulchand Jaiswal to Brijkishore vide sale-deed dated 28/04/1972. It is also contended that this Khasra No.42 was renumbered as Khasra No.56, during consolidation proceedings. The contention is that late Fulchand Jaiswal was not owner of entire Khasra No.42 and therefore, his daughters Shantabai and Sushilabai could not inherit the entire property bearing Khasra No.42. With respect to partition-deed dated 22/11/2006 between Shantabai and Sushilabai, a contention is raised that in view of sale-deed executed by Fulchand in favour of Brijkishore, his daughter Shantabai was not left with any disposing power or right to transfer property bearing Khasra No.42, which was renumbered as Khasra No.56.
All these pleadings do not find place in the plaint even after the earlier amendments.
Having regard to the nature of controversy involved, in the considered opinion of this Court, these pleadings will be relevant for deciding the suit. True it is that this is fourth application for amendment of plaint, however, having regard to the fact that the trial of the suit has not commenced, in the considered opinion of this Court, the learned Trial Court ought to have allowed the application. The observations by the learned Trial Court that the pleadings sought to be incorporated in the plaint already find mention in the plaint is factually incorrect. A more correct statement will be that facts, which are pleaded in the plaint, are sought to be further explained and elaborated and certain circumstances are sought to be demonstrated, which, if proved will fortify the contention of the plaintiff with respect to medical condition of late Brijkishore and authority of Shantabai to bequeath and alienate the suit properties.
Having regard to the fact that the suit is for partition and separate possession, it will be appropriate that lenient approach is adopted.
In view of the aforesaid, Writ Petition deserves to be allowed and is allowed accordingly by quashing and setting aside the order dated 04/11/2025, passed by the learned Civil Judge Senior Division, Nagpur on application at Exh.137 in Regular Civil Suit No.1034/2016 and by allowing the said application for amendment filed vide Exh.137. However, having regard to the delay that is caused, costs of Rs.50,000/- (Rupees Fifty Thousand Only) are imposed on the petitioner. The cost should be paid to the respondent No.7 on or before 28/08/2026.
Rule is made absolute in the aforesaid terms.