The proposed amendment and the photocopy of the Will must have relevance to the controversy at hand and should not be intended to prolong the issues.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition filed under Article 227 of the Constitution of India, petitioners/defendants have assailed order dated 08.10.2018, passed by the Court of learned Civil Judge (Sr. Divn.), Court No. 1, Rohru, in CMAs No. 277-6 of 2018 and 278-6 of 2018 in Civil Suit No. 157/1 of 2014, vide which applications filed by the petitioners/defendants under Order 6, Rule 17 CPC for carrying out amendment in the written statement and under Order 7, Rule 14 CPC for placing on record photocopy of Will dated 5.3.2012, stand rejected.

2. Brief facts necessary for adjudication of this petition are as under:- Respondents/plaintiffs (hereinafter to be referred as 'plaintiffs’) instituted a suit for declaration that they being daughters of Atma Ram, son of Karam Dass, who was impleaded as defendant No. 1, were coparceners alongwith others and were having equal shares in the ancestral properties in the hands of their father Shri Atma Ram. As per them, suit land was jointly owned and possessed by Karam Dass and other recorded co-owners. Said co-owners Karam Dass and Fina Dass, sons of Davi Saran were succeeded by Atma Ram by way of inheritance/succession and after the death of Karam Dass, suit property devolved upon Atma Ram vide mutation No. 5364, dated 30.06.2004. As per the plaintiffs, as Atma Ram was not willing to give to the plaintiffs their share, hence, they were seeking declaration that they were entitled to their respective shares out of the suit property.

3. The case set up by the plaintiffs has been denied and as per averments made in the written statement, plaintiffs are not entitled to any relief as prayed for and further the suit filed by them is not maintainable. Defendants have denied that plaintiffs are the daughters of Atma Ram or that they are coparceners with Atma Ram qua the suit land or are having equal share by birth in the properties in the hands of Atma Ram. Written statement filed in November, 2014 was supported by the affidavit of Sumesh Chauhan, son of Atma Ram. During the pendency of the suit, defendant Atma Ram died.

4. In September, 2018, petitioners/defendants filed an application under Order 6, Rule 17 CPC with the prayer to allow them to amend the written statement. It was averred in the application that in the course of preparing the case for leading evidence on behalf of the defendants, it transpired that due to bonafide oversight and inadvertence, this defence could not be taken earlier that Atma Ram during his lifetime had executed a Will dated 05.03.2012 and had bequeathed his movable and immovable property in favour of his sons, namely, Santosh Kumar and Sumesh Chauhan. The proposed amendment is being reproduced herein-below:-

“10. That without conceding any of the defenses raised hereinabove it is submitted on behalf of the defendants that the predecessor-in-interest of the defendants, Sh Atma Ram, who had earlier been arrayed as defendant in the suit, had during his lifetime executed a Will Dated 5.03.2012. the Will dated 5.03.2012 was duly registered in the office of the Sub Registrar Shimla (Urban). By way of the Will the said Sh. Atma Ram has bequeathed his entire movable and immovable properties in favour of the defendants Sh. Santosh Kumar and Sh. Sumesh Chauhan, being his sons and out of natural love and affection. This being so no person other than the above stated Sh. Santosh Kumar and Sumesh Chauhan can stake any claim in the properties left behind by late Sh Atma Ram, much less the plaintiffs whose claim top the properties of Late Sh Atma Ram is based upon false and concocted allegations. The suit of the plaintiffs thus is liable to be dismissed with costs.”

5. Petitioners/defendants also filed an application to place on record photocopy of Will dated 05.03.2012 of deceased Atma Ram. These application have been dismissed vide impugned order dated 08.10.2018.

6. Feeling aggrieved, petitioners/defendants have filed this petition.

7. I have heard learned Counsel for th