Point of Law: Re Appreciate and Reweigh Evidence - The scope of power of this Court to exercise jurisdiction under Article 227 of the Constitution of India is restrictive and well defined. This Court in exercise of aforesaid jurisdiction will not sit as Court of appeal to reappreciate and reweigh the evidence or facts upon which the determination under challenge is based.

ORDER :

1. Both these petitions are being decided by a common order as identical questions of facts and law are involved.

2. Respondent herein has filed a Civil Suit No. 90-K/1 of 2007 against the petitioners herein, which is pending before the learned Civil Judge, Kandaghat, District Solan, H.P. Petitioners have also filed their counterclaim which is also being adjudicated along with the above noted civil suit.

3. The dispute in the above noted suit and counterclaim is with respect to estate of late Shri Gita Prakash Verma. Petitioners and respondent have put up their respective claim and counterclaim seeking rights over the estate of Shri Geeta Prakash Verma to the exclusion of other.

4. Respondent herein/plaintiff has already led her evidence and the case was fixed for the evidence of petitioners. At that stage, petitioners moved two separate application, though identical in nature, before the learned trial Court, whereby the written statement and counterclaim filed by them were sought to be amended under Order 6, Rule 17 of the Code of Civil Procedure. The amendment sought was by addition of averments in para-3 of the counter claim and para-6 of the written statements in following terms:-

“The complete adoption ceremony took place in presence of the biological parents Shri Rama Nand Sharma and Smt. Bimla Sharma, of counter claimant No.2 Shri Kartik, who was handed over by them (Goad Dena) to counter claimant No.1 Smt. Gaitri Devi and Late Shri Geeta Prakash, who accepted the counter claimant No.2 as their son, after taking physical custody (Goad Lena) of the child Kartik being counter claimant No.2. The ceremony was witnessed by the family members present, which was duly performed by Prohit Shri Hari Nand Sharma. After the ceremony counter claimant No.2 is being recognized as son of late Shri Geeta Prakash and Smt. Gaitri Devi for all intends and purposes. After the ceremony counter claimant No.2 Kartik remained with Shri Geeta Prakash and Counter Claimant No.2 Smt. Giatri Devi, as their only son. In all the official records the name of counter claimant No.2 Shri Kartik has been entered as son of Shri Geeta Prakash.”

5. The original averments in para-6 of the written statements were as under:

“.......It is admitted that defendant No.2 was born to real sister of defendant No.1, however, immediately on his birth, late Shri Geeta Prakash and the replying defendant No.2 adopted him according to Hindu customs and rites and ceremony for the same was duly performed according to Hindu customs and rites.”

6. The original averments in para-3 of the counterclaim were as under:

“.......In year 1994 late Sh. Gita Prakash and counterclaimant No.1 adopted counter claimant No.2 according to Hindu rites and custom.”

7. The application for amendment in counterclaim was registered as CMA no. 146-K/6 of 2022 and application for amendment in written statement was registered as CMA No. 147/K/6 of 2022. Learned trial Court dismissed both the applications vide separate orders dated 25.06.2022 on the same grounds. Hence, these petitions.

8. I have heard Mr. Harsh Khanna, Advocate, for the petitioners and Mr. Sudhir Thakur, Senior Advocate, for the respondent and have also gone through the record carefully.

9. Learned counsel for the petitioners contended that the plea regarding adoption of petitioner No.2 by late Shri Geeta Prakash Verma and petitioner No.1 was originally incorporated in the written statement and counterclaim. The amendment was sought only with a purpose to explain, clarify and detail the factum and mode of adoption with a purpose to obviate any objection regarding insufficiency of plea.

10. On the other hand, learned senior counsel representing the respondent has contended that plea seeking amendment to written statement and counterclaim was not bonafide. The suit is pending since 2007. Respondent/plaintiff has already led her evidence. The petitioners had failed to plead and reveal the reason for not seeking amendment before commenc