Amendments introducing time barred claims are impermissible after trial commencement unless due diligence is demonstrated by the party seeking the amendment.

JUDGMENT :

ARUN KUMAR JHA, J.

1. Heard learned counsel for the parties on the point of admission and I intend to dispose of the present petition at the stage of admission itself.

2. The petitioner is aggrieved by the order dated 21.06.2018 passed by the learned Sub Judge, Areraj in Partition Suit No. 984 of 2014 whereby and whereunder the learned Sub Judge allowed the amendment petition dated 10.05.2018 filed by the plaintiffs/respondents, for amendment in the plaint, under Order VI Rule 17 read of the Code of Civil Procedure (for short ‘the Code’).

3. Learned counsel for the petitioner submits that the petitioner is the defendant in Partition Suit No. 984 of 2014 which has been filed by the plaintiffs/respondents seeking ½ share in the suit property. During pendency of the trial, plaintiffs filed a petition on 10.05.2018 under Order VI Rule 17 of the Code for amendment of plaint. By filing the application for amendment, the plaintiffs sought declaration to the effect that any deed of gift or Will executed by his mother is wrong and illegal and his mother has got no right to execute the Will or gift deed and the same was not binding upon the plaintiffs. The defendant/petitioner filed his rejoinder mentioning inter alia that the deeds were executed 6-7 years back and gift deed was mentioned in written statement of the Partition Suit No. 52 of 2011 on 13.08.2012. Similarly, the probate petition was filed by the wife of the defendant bearing Probate Case No. 23 of 2011 and the plaintiff appeared in that case and filed his reply. Thus, the gift deed has been challenged after six years and declaration against Will has been sought after seven years. Learned counsel further submits that the limitation period for challenging the documents is three years only and hence, a time barred relief has been sought by way of amendment. Learned counsel further submits that the learned trial court though mentioned that the amendment sought was barred by law of limitation still it allowed the application for amendment at the cost of Rs. 1,000/-. Learned counsel thus submits that the approach of the court is against the law. The amendment is not only time barred but it has also been filed after the commencement of trial and no due diligence for not bringing the amendment earlier has been shown. Thus, the learned counsel submits that the impugned order is not sustainable and the same needs to be set aside.

4. Learned counsel appearing on behalf of respondent submits that the amendment has been allowed in the interest of justice and to avoid the multiplicity of litigation and this was the reason for allowing the amendment by the learned trial court. Learned counsel further submits that the amendment has been sought to introduce facts about the gift deed/Will executed by the mother of the respondent and petitioner with regard to suit property and if the same is not allowed, it would result in multiplicity of litigation and the controversy between the parties could not be adjudicated. Thus, the learned counsel submits that the impugned order needs no interference by this Court. In this regard learned counsel relied on the decision of this Court in the Case of Kamal Kishore Prasad vs. Sri Lal Kumar Rai & Ors. (Civil Misc. No. 657 of 2017) whereby and whereunder, vide judgment dated 12.06.2016, this Court relying on the decision of the Hon’ble Supreme Court in the case of Life Insurance Corporation of India vs. Sanjeev Builders (P) Ltd. 2022 SCC OnLine SC 1128, allowed the amendment even after commencement of trial.

5. I have given my thoughtful consideration to the rival submission of the par