1. The matter comes upon on an application for early listing of the writ petition, the same is hereby is allowed. With the consent of the parties, the matter is taken up for hearing today itself.

2. The present writ petition is directed against the order dated 24.07.2004, passed by the learned Additional District Judge, Fast Track No.2, Ajmer, whereby he had rejected a composite application filed by the plaintiff under Order 6 Rule 17 seeking amendment in the plaint and impleadment of the beneficiaries of the will.

3. The brief facts of the case are that the petitioner-plaintiff filed a suit for partition of the property of her father, namely Mr. Samual G. Paul. During the pendency of the suit proceedings, the defendant, her brother filed a written statement inter alia stating that property in question; belonging to their father, Mr. Samual G. Paul has been bequethed by him in favour of his grand children (sons and daughters of the defendant) vide a will dated 17.7.1989.

4. Coming to know of the factum of the will, the plaintiff filed a consolidated application under Order 6 Rule 17 and Order 1 Rule 10 seeking amendment in the plaint incorporating challenge to the will dated 17.71989 and seeking impleadment of the beneficiaries of the will, namely Smt. Shelet Anita Paul and Anish Paul.

5. The defendants/respondents filed reply to the said application and opposed such amendment and impleadment of the beneficiaries of the will.

6. By way of the order under challenge, learned trial court rejected the said consolidated application, observing therein that amendment and impleadment are unwarranted and such facts and challenge can be brought by the plaintiff, by way of a rejoinder.

7. Learned counsel for the petitioner/plaintiff has argued that the amendment in question laying challenge to the will is necessary for proper adjudication of the ‘lis’ between the parties. The suit in question was filed by the plaintiff, for partition of the property of her father and if the will in question is not permitted to be challenged, the suit in question would be rendered meaningless and would lead to multiplicity of litigation. He further submitted that the parties to the suit are common and the plaintiff has sought to implead, none other than the son and daughter of the defendant, in whose favour the property is said to have been bequethed.

8. Counsel for the petitioner has relied upon a judgment of this Court passed in S.B. Civil Writ Petition No. 13407/2012 (Vasudev & Ors. Versus Anar Devi & Ors.), decided on 20.12.2013, whereby this court has permitted amendment in a suit, for permanent injunction, which amendment has made it a suit for declaration also, though, such amendment was asked for after 17 years.

9. Counsel for the petitioner has also cited judgment of the Hon’ble the Supreme Court, reported in (2004) 6 SSC 415 (Pankaja Vs. Yellppa). It will be worthwhile, to reproduce the observations made by Hon’ble Supreme Court in para No.14:-

“The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The Jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really sub-serves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.”

10. Learned counsel for the respondent Mr. G. P. Kaushik submitted that the amendment in the plaint will change the nature of the suit and it would become a suit for partition and declaration, whereas it was only a suit for partition, as filed originally. Mr. Kau