Judgment

Mrs. Alka Sarin, J.

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 06.07.2017 whereby an application filed by the plaintiff-petitioner for amendment of the plaint to challenge the validity of the Will has been rejected by the Trial Court.

2. The brief facts relevant to the present lis are that the suit for declaration was filed to the effect that the plaintiff-petitioner herein, defendants-respondent Nos.1 and 2, proforma defendant-respondent Nos.3 and 4 and plaintiff-respondent No.5 herein were owners to the extent of 1/6th share each in the land comprised in khewat/khatauni No.13//13/14, khasra No.124 (2-0) to the extent of 3/40 share each situated at Village Dharampur, H.B No.152, Tehsil Kalka, District Panchkula and land comprised in khewat/khatauni No.109/229, khasra No.179 (30-8) to the extent of 31/3040 share and khewat/khatauni No.147/277 khasra No.131 (4-12), to the extent of 1/23 share situtated at Village Bitna, H.B. No.153, Tehsil Kalka, District Panchkula. On 19.09.2013 a written statement was filed wherein a Will dated 20.11.2011 was set up by defendant-respondent Nos.1 and 2 in their favour alleged to have been executed by their father. The present application for amendment of the plaint was filed on 31.03.2015 seeking to challenge the Will dated 20.11.2011. Reply to the application was filed. Vide the impugned order the application was dismissed on the ground that the plaintiff-petitioner had failed to show how these facts came to her knowledge or that she had acted with due diligence. Hence, the present revision.

3. Learned counsel for the plaintiff-petitioner would contend that the Trial Court has dismissed the application on the ground that neither the source of new knowledge or substantial ground for introducing the proposed amendments have been shown. It is further the contention of the counsel for the plaintiff-petitioner that the plaintiff-petitioner gained knowledge of the alleged Will dated 20.11.2021 only when the written statement was filed and the Will was set up by defendant-respondent Nos.1 and 2. Learned counsel would further contend that till the date of knowledge i.e. from the time of the filing of the written statement, the challenge to the Will would be within the limitation and not time barred. Further, the counsel has contended that no prejudice would be caused to the defendants-respondents in case the application is allowed however great injustice would be caused to the plaintiff-petitioner, who is the sister and who has been deprived of her right in the property. Learned counsel for the plaintiff-petitioner has further pointed out that the Will itself is patently fraudulent inasmuch as the left hand and right hand thumb of father of the parties were amputated. However the Will is shown to be thumb marked (right thumb impression) by the testator.

4. Per contra, learned counsel for the defendant-respondent Nos.1 and 2 contends that there is no due diligence and in the absence of due diligence, parties cannot introduce the amendment. In support of his argument he has relied upon the judgment of the Supreme Court in the case of Pandit Malhari Mahale Vs. Monika Pandit Mahale & Ors. 2020 (2) BCR 480.

5. Heard.

6. In the present case, the suit was filed on 16.08.2013 and the written statement was filed on 19.09.2013. The application for amendment has been filed on 31.03.2015 i.e. after the framing of the issues. The plaintiff-petitioner no doubt has been remiss in not filing the application earlier, however, the reasoning given by the