IMPORTANT POINT
The main legal point established in the judgment is that an amendment to incorporate a new unregistered will in the written statement may be allowed if it is necessary for the effective adjudication of the case and does not cause undue prejudice to the other party.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. The petitioner herein being aggrieved by the order no. 9 dated 12.10.2018 passed by the learned Civil Judge (Senior Division) 2nd Court Barasat, North 24 Parganas in T.S. No. 178 of 2017 has preferred this application under article 227 of the Constitution of India. Petitioner contended that the petitioner is the married daughter and executrix of her mother’s last will which was duly registered on 13.03.2014 bequeathing the entire suit building in favour of petitioner and her brother. Petitioner’s further case is that after the death of testatrix they have initiated probate proceeding which is pending before this Court.

2. The petitioner instituted aforesaid T.S. no. 178 of 2017 seeking eviction of the opposite party/defendants along with other reliefs as stated in the plaint. Petitioner’s further case is that the points to be decided in the aforesaid suit, in short, is about petitioners claim of right to protect ‘A’ schedule property until the grant of probate and the question involving eviction of opposite parties/defendants from the suit property holding them rank trespassers. In the plaint plaintiff/petitioner alleged that the defendant no.1 is in illegal possession of two shop rooms in the suit building and it is her further case that neither the mother of plaintiff nor plaintiff herself has ever entered into any agreement with the defendants.

3. The defendant no.1 entered appearance in the said suit and filed written statement wherein she has denied all the material allegations made in the plaint. Petitioners further case is that after filing of the written statement, the defendant no.1 filed one application under order VI rule 17 of the Civil Procedure Code (CPC) for amendment of the written statement. By the proposed amendment defendant no.1 now tried to incorporate in their written statement a new fact that a Will was executed by the same testatrix in their favour on 22.05.2006 which was unregistered. The plaintiff petitioner herein filed written objection against the said amendment application. However court below after hearing both the parties has been pleased to allow the defendants prayer for amendment of the written statement.

4. Being aggrieved by that order Mr. Chakraborty, learned counsel appearing on behalf of the petitioner submits that learned court below had failed to appreciate that after filing written statement, defendant is not legally entitled to prefer such prayer for amendment taking a completely different stand. He further submits that the order impugned is a non-speaking order without appreciating true scope and purport of the matter in controversy. If the proposed amendment is allowed there is serious chance of changing nature and character of the suit and as such court below ought not to have allowed the said application which has been filed at a belated stage. The defendant has not explained as to what prevented him to incorporate such pleading with the original written statement when her case is that alleged unregistered will was executed on 2nd May, 2006. In fact aforesaid story sought to be incorporated by defendant no.1, has been manufactured only to grab the property. He further contended that the court below has overlooked the fact that even a manufactured sale agreement was earlier exposed by Bidhannagar Municipal Corporation against an RTI application filed by the plaintiff.

5. Mr. Chakraborty further contended that in connection with the above mentioned forged will allegedly executed by the landlady Smt. Bharati Saha, the defendant herein started probate proceeding being allegedly Misc., Case no. 113 of 2013 but actually it is Misc. Case No. 113 of 2018, which has been challenged by the plaintiff/petitioner herein and therefore it was renumbered as O.S. 66 of 2018. However, defendant no.1 in the said suit, Tapan Kumar Saha Roy died on 19.10.2020 and thereafter petitioner claiming herself as wife and sole legal heir of Tapan Kumar Saha Roy filed substitut