JUDGMENT :

Rajiv Sharma, J.

This petition is instituted against the order dated 3.5.2005 rendered by Additional District Judge, Ghumarwin, District Bilaspur in CA No.244/13 of 2004/1999.

2. ?Key facts? necessary for the adjudication of this petitioner are that the predecessor-in-interest of respondents-plaintiffs, namely Smt. Devku Devi has instituted a suit for declaration and permanent prohibitory injunction and for possession against the petitioner-defendant (hereinafter referred to as the ?defendant? for convenience sake) in the Court of Senior Sub Judge, Bilaspur bearing case No. 397-1 of 1995. The suit was decreed by the learned Senior Sub Judge, Bilaspur on 16.9.1999. Defendant filed an appeal before the learned Additional District Judge against the judgment and decree dated 16.9.1999. Smt. Devku died on 8.8.2002 and the plaintiffs were brought on record after the death of Devku Devi.

3. Defendant filed an application under Order 6 Rule 17 of the Code of Civil Procedure seeking the following amendment in the written statement:

“That the Devku did never execute any will in favour of the respondent. She was not having sound disposing mind and did not enjoy cognitive facilities to execute any such documents. The respondents has not sought any amendment in the plaint to claim any right title and interest in the estate of Smt. Devku.”

Defendant has also filed amended written statement along with application.

4. The application was contested by the plaintiffs. According to the reply, Smt. Devku has executed a legal and valid ?will? on 31.5.2000 in their favour. The ?Will? was registered in the office of Sub Registrar. The will was executed by Devku in sound state of mind. The application has been filed to prolong the litigation. The amendment, thus, as sought was not necessary. The learned Additional District Judge dismissed the application on 3.5.2005.

5. It is evident from the material brought on record that the plaintiffs are claiming themselves to be owners in possession of the suit land on the basis of ?will? dated 31.5.2000 executed by Smt. Devku in their favour. It was duly registered. Case of the defendant was that the land measuring 1-3 bighas was in his possession, as tenant under Devku. She has gifted the entire land in his favour on 17.7.1964 by way of gift. Mutation No. 364 was attested in his favour. He remained owner in possession of the suit property. Defendant has challenged the execution of ?will? in favour of the plaintiffs. The Additional District Judge ought to have allowed the application preferred under Order 6 Rule 17 Code of Civil Procedure in order to minimise the litigation. The Additional District Judge has not taken into consideration the well settled principles governing the amendment. It is settled law by now that the Courts should be liberal while granting amendments to written statements so as to decide the real dispute/issues between the parties without causing prejudice to the other side.

6. Their Lordships of the Hon'ble Supreme Court in Estralla Rubber vs. Dass Estate (P) Ltd. (2001) 8 SCC 97 have held that where purpose of proposed amendment is to elaborate the defence and take additional pleas in support of the case, the amendment should be allowed. Their Lordships have held as under:

“6. We have considered the submissions made on behalf of either side. The High Court set aside the order passed by the learned District Judge stating that the proposed amendment will have the effect of displacing the plaintiff from admission made by the defendant in its petition filed under Sections 17 (2) and 17 (2A) of the Act and that such admission could not be permitted to be withdrawn. We have perused the relevant records including the original application and the proposed amendments. We are not able to see any admission made by the defendant as such, which was sought to be withdrawn. By the proposed amendment the defendant wanted to say that Ala Mohan Das was a permissive occupier instead of owner. The further