Smt. Girja Devi vs Basudev Sao and Others

D.N. Patel, J.—The present writ petition has been preferred against the order passed by the learned Sub Judge-III, Giridih dated 7th January, 2011 in Partition Suit No. 33 of 1998 whereby, an amendment application preferred by the present Petitioner, who is an original Plaintiff, under Order VI Rule 17 of the CPC has been dismissed.

Though the notice was issued by this Court on 21st February, 2011 to be served by personal service, only Respondent No. 3 has accepted the notice, but, he has not chosen to appear before this Court. So far as the rest of the Respondents are concerned, they have refused to accept the notice of this Court and an affidavit to that effect has also been filed by the counsel for the Petitioner.

In view of this fact, Respondents are treated to have been served.

Having heard counsel for the Petitioner and looking to the facts and circumstances of the case, it appears that the Petitioner wants to add after the end of paragraph No. 4 of the plaint, which reads as under:

Bsudeo Sao, Defdt. No. 1, obtained Regd. Power of Attorney, dated 13/05/94, from the Plaintiff and Defendants Nos. 2 to 5, in which the Defendants Nos. 1 to 5, admitted, accepted, acknowledged and confirmed the truth & reality, that, Smt. Girija Devi, the plff. of this suit is the second wife of late Budhan Sao, and the Defdts. Nos. 1 to 5, addressed and described Smt. Girija Devi, as widow of late Budhan Sao, and Defdt. No. 1, Basudeo sao, duly empowered & authorised agreed to pay & deliver Rs. 20,000/-(rupees Twenty Thousand ) only, to the Plaintiff, Smt. Girija Devi being the dues of Provident Fund & Gratuity of late Budhan Sao, Ultimately, on the advice of Defendants Nos. 1 to 5, the employer of the deceased Budhan Sao, paid Rs. 20,000/- to the Plaintiff, through A/C Payee Cheque No. 0219849, dated, 25/06/98, during pendency of the instant suit, towards Provident Fund & Gratuity amount of deceased Budhan Sao. The Original Power of Attorney dated, 13/05/94, is lying in the care & custody of Defdt. No. 1, Basudeo Sao who refused to deliver the same to the Plaintiff, on demand. Learned Court called for the Original from the D.S.R., Giridih, who did not produce the same in learned Court, till this date. The relevant correspondences form part of Suit Record. Deftdts, Nos. 1 to 5, are well conversant of the glaring & vital facts, that, the Plaintiff has been coming on withdrawing & receiving the Monthly Pension amount, consequent to the death of the employer, Budhan Sao, from the office of his employer, w.e.f. 1995, to up-to-date, regularly & continuously, in the capacity of the widow of late Budhan Sao to the Notice and knowledge of defdts. Nos. 1 to 5, who never raised any objection in the office of the employer, viz. Electrical Executive Engineer, Supply Division, Giridih. Defendts. Nos. 1 to 5, executed Agreement, dated, 13/05/94, in favour of the Plaintiff, which was filed by the plff. accompanied by list, dated 12/02/2003, in this Suit, and C.C. of Regd. Power of Attorney was filed by the Plff. on, 31/08/1998, accompanied by Petition. Power of Attorney & agreement, both decide terms of Agreement between parties to the instant suit.

It appears that the present Petitioner is the second wife of the father of the Defendants and Basudev Sao, who is original Defendant No. 1 is a step son. Likewise Defendant Nos. 2 to 5, who are referred to hereinabove are also the step sons and it is submitted by the original Plaintiff, who is present Petitioner, that in earlier registered Power of Attorney, there is a reference of the present Petitioner as a second wife of father of the original Defendants. This aspect of the matter affects the very root of the partition suit because the aforesaid aspects establishes the fact that the present Petitioner is lawful wedded wife of the father of the original Defendants and therefore, the Petitioner is entitled to her share in the suit property, which is required to be partitioned by the order of this Court. This aspect of the matter has not been properly appreciated by the learned trial court.

Moreover, the learned trial court has also brushed aside the amendment application preferred by the original Plaintiff under Order VI Rule 17 on the ground of delay. Looking to the facts of the present case, delay alone cannot be a ground for dismissal of such an application. It appears from the nature of the amendment application that only a registered Power of Attorney dated 13th May, 1994 shall be brought on record. The said document is a registered document, as per the allegations levelled by the Petitioner and looking to the contents of this registered Power of Attorney, it appears that if this is a true, correct and genuine document then it will affect the very root of the case and therefore, without going into the merits of the amendment it ought to have been allowed because the facts narrated in the amendment application is a vital fact.

I therefore, quash and set aside the order passed by the learned Sub Judge-III, Giridih dated 7th January, 2011 in Partition Suit No. 33 of 1998 (Annexure-3 to the memo of the present petition). The amendment application preferred under Order VI Rule 17 is allowed with a cost of Rs. 5,000/- (Rupees five thousand only). This amount will be deposited by the present Petitioner (original Plaintiff) before the trial court which will allowed to be withdrawn by the original Defendants on proper application.

In view of the aforesaid facts and reasons, this writ application is allowed and disposed of.