Failure to amend pleadings post-trial without due diligence limits claims, and a will's validity requires testimony from attesting witnesses to overcome burdens of proof and dispel doubts.

JUDGMENT :

Parth Prateem Sahu, J.

1. Learned counsel for appellants submits that she has moved an application under Order 6 Rule 17 of C.P.C. for amending the plaint. She contended that inadvertently in the plaint, appellants/plaintiff could not plead the fact that the entire property recorded in name of Dokara, his father in law and father of testator, Anand Kunwar has been gifted in joint name of Anand Kunwar and plaintiff vide its gift deed dated 13.03.1975. She contended that as the entire property of Dokara was gifted to them, both of them became joint owner, therefore, will executed by Anand Kunwar on 19.06.2005 was not a valid document, therefore, she want to amend the plaint in paragraph No.8 as Para 8.A that late Anand Kunwar has not succeeded the property from his late father Dokara in fact Anand Kunwar received the same from Dokara by way of gift deed dated 13.03.1975, therefore, the property was self acquired property of plaintiff, and late Anand Kunwar and plaintiff is legal heir of late Anand Kunwar and successor of property.

2. Prayer made in the application under Order 6 Rule 17 C.P.C. is opposed by learned counsel for respondent.

3. I have heard learned counsel for parties on the application under Order 6 Rule 17 C.P.C.

4. At this stage learned counsel for appellant/plaintiff would submit that she also filed an application under order 41 Rule 27 of C.P.C. to take the registered gift deed dated 13.03.1975 as additional evidence annexing copy of gift deed.

5. Suit was filed by appellant/plaintiff on 04.07.2011. The fact of execution of gift deed was not pleaded by plaintiff in plaint in specific terms, nor made any statement before the trial Court in his evidence or have submitted any application seeking amendment before the First Appellate court. The judgment and decree of learned trial Court is dated 30.04.2013 and the Appellate Court judgment is dated 07.12.2013. Application for amendment U/o. 6 Rule 17 CPC seeking amendment in plaint was filed on 30.12.2014.

6. In the pleading made in the application under Order 6 Rule 17 of C.P.C. except mentioning that there was clerical mistake, no other reason has been assigned. The provision under Order 6 Rule 17 C.P.C. came to be amended in the year 2002 and according to the proviso to Order 6 Rule 17 of C.P.C. it is envisaged that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to conclusion that in-spite of due diligence, the party could not have raised the matter before commencement of trial. In the body of the application U/o. 6 Rule 17 of C.P.C., no such averment is made by appellants/plaintiffs, therefore, there is no fulfillment of requirement of the proviso under Order 6 Rule 17 of C.P.C. while seeking amendment in the plaint at the stage of second appeal.

7. Hon’ble Supreme Court in case of M. Revanna v. Anjanamma , (2019) 4 SCC 332, while considering the prayer for amendment at belated stage observed thus :-

“7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite