IMPORTANT POINT
Amendment of Written Statement - Courts are more liberal in allowing amendments of written statement as the question of prejudice is unlikely to arise in that event.

M.M. KUMAR, J.

1. The defendants have approached this Court by invoking the provisions of Section 115 of the Civil Procedure Code, 1908 (for brevity, “the Code”) and have challenged the interlocutory order dated 21-3- 2002 passed by the learned Lower Appellate Court dismissing their application preferred under Order 6 Rule 17 of the Code, seeking amendment of the plaint at the stage when their appeal under Section 96 of the Code was pending before the Lower Appellate Court.

2. Brief facts of the case are that the plaintiff-respondent filed a suit for possession seeking a declaration that they were owners to the extent of 4/5th share and also sought partition in equal share to the extent of 1/5th share. A further declaration was sought that defendant-respondent No.5 Smt. Baksho widow of Chaman Lal is a co-owner to the extent of 1/5th share in respect of premises marked as ABCD in the site plan attached with the plaint. The plaintiffs also challenged the sale-deeds dated 17-4- 1995 executed by defendant-respondent No.5 Smt. Baksho in favour of the defendant-petitioners. It is appropriate to mention that the plaintiff-respondents also asserted that they were the off- springs of marriage of Chaman Lal with Smt. Nirmala and after the death of Nirmala, Chaman Lal married Smt.Baksho defendant- respondent No.5. Smt. Baksho (defendant-respondent No.5) alongwith defendant-respondent No.6 Mukhtiar Singh set up the plea that plaintiff-respondents were not related to Chaman Lal in any manner, who had died on 11-9-1997.

3. The defendant-petitioners filed a written statement by taking the stand that they are bona fide purchaser and have purchased 2/3rd of the property in dispute from Smt.Baksho defendant-respondent No.5 vide registered sale-deed dated 17-4- 1995 for a valuable consideration of Rs.17,000/-. It was further claimed that defendant-petitioner No.2 has purchased 1/3rd share of the property in dispute from Smt. Baksho vide registered sale- deed dated 17-4-1995 for a valuable consideration of Rs.8000/-. According to the pleadings in the written statement, defendant- petitioners have claimed to be in possession to the extent of their share. They have further claimed that Smt.Baksho defendant- respondent No.5 has been the exclusive owner in possession of the property in dispute and, therefore, both the defendants- petitioners are in possession, who are the bona fide purchaser from her.

4. During the course of evidence it transpired that defendant- respondent Smt.Baksho had also filed a civil suit No.266/1993 dated 8-6-1993 wherein she had set up a Will dated 30-7-1986 executed by Chaman Lal in her favour. The aforementioned suit, however, was dismissed as withdrawn. The suit of the plaintiff- respondents from which the instant petition has arisen, however, was decreed and the defendant- petitioners filed an appeal under Section 96 of the Code. During the pendency of the aforementioned appeal, an application under Order 6 Rule 17 of Code was filed in which prayer was made that Sh.Chaman Lal husband of defendant- respondent No.5 Smt.Baksho had executed a legal and valid Will dated 30-7-1986 in her favour and accordingly she had become absolute owner of the suit property to the exclusion of other heirs like the plaintiff- respondents. It was sought to be incorporated by way of amendment that plaintiff-respondents never challenged the title of Smt.Baksho defendant-respondent No.5 in respect of the suit property and in fact had admitted her as its owner. They further claimed that inadvertently, in the written statement, they could not plead that the possession of Mukhtiar Singh was in his capacity as a tenant which emanates from the decision of the civil suit No.64 of 20-11-1993 in the case titled as Mukhtiar Singh v. Smt. Baksho, decided by the trial court on 12-6-1995. The inadvertence has been cited as a reason for pleading that the defendant-petitioners were in possession of the suit property instead of mentioning that they we