The rejection of an amendment application under Order VI, Rule 17 CPC should be based on whether the proposed amendments are imperative for proper adjudication, do not cause prejudice, and do not fundamentally change the nature of the case.

SUNIL AMBWANI, J.

Order on Civil Misc Amendment Application No. 301417 of 2009 (A-28) dated 8.11.2009.

On behalf of Raja Chandra Vijay Singh Caveat or/Defendant/ Applicant

2. We have heard Shri Ajeet Kumar learned Counsel for the caveat or/defendant Sri Navin Sinha, Sr. Advocate assisted by Shri Rahul Sahai appears for the plaintiff.

3. The Testamentary Case No.1 of 2007, registered as Testamentary Suit No.5 of 2007 (by order dated 8.5.2007), was filed on 21.11.2006 for grant of letters of administration in favour of the plaintiff-Yuvrani Reena Kumari, the daughter of the deceased-testator Late Rani Indra Mohini in respect of the alleged Will dated 15.11.1984. Shri Chandra Vijay Singh son of late Shri Misri Chandra and Smt. Indra Mohini (the deceased) filed a caveat under Chapter XXX, Rule 6 and 7 of the Allahabad High Court Rules, 1952 raising objections to the grant of letters of administration, through Shri A. K. Rai and Shri Vishnu Kumar Singh, Advocates on 16,4.2007. The issues were framed on 27.9.2007. An additional issue was framed on 7.8.2008.

4. The matter was nominated by Hon'ble the Chief Justice on 2.3.2009.

5. On 9.4.2009 an application for impalement was filed by Shri Surya Vijay Singh through Shri Amit Saxena, Advocate. The Application (A-19) for summoning the original Will dated 15.11.1984 deposited by the testator in the office of District Registrar, Lucknow vide Receipt No. 42 for safe custody was allowed. The alleged Will was produced by Shri Pramod Kumar Dwivedi, Sub-Registrar in the office of District Registrar, Lucknow on 14.5.2009 along with the register. It was directed to be kept in the safe custody of the Registrar General, and the matter was fixed for 16th July, 2009.

6. Shri Ajeet Kumar, Advocate filed vakalatnama in the case on 8.11.2009. He appeared as Counsel for caveat or/objector Shri Chandra Vijay Singh for the first time in Court, when the matter was listed on 13.11.2009. He wanted to look into the entire record to make submissions and also filed application for amending the written statement.

7. Raja Chandra Vijay Singh, caveat or/defendant/applicant seeks to amend paragraphs 3, 4, 5, 17, 23, 24 and 25 of the written statement and wants to add paragraphs 25A to 25N to his caveat/written statement.

8. A preliminary objection has been raised by Shri Navin Sinha that the issues were framed in the Suit on 27.9.2007, and additional issue was framed on 7.8.2008. The Court had directed the issue Nos. 3 and 4 to be decided as preliminary issues. On the date fixed for hearing on preliminary issues, the amendment application has been filed on 11.11.2009, virtually redrafting the written statement. The caveat or intends to delay the proceedings. The additional paras sought to be added are by way of arguments, which are not required to be made part of the pleading. He submits that the change of Counsel and his advice should not be taken to be a valid ground to amend the pleading. The entire object of amendment application is to delay and complicate the proceedings. He relies upon the amended proviso to Order VI, Rule 17 of the Code of Civil Procedure, 1908. The proviso added to Order VI, Rule 17 C.P.C. provides:

"Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

9. Shri Ajeet Kumar submits that the Courts should adopt liberal approach in allowing the amendments, which can be filed at any stage of the suit. He submits that the caveat or defendant should get an opportunity to make proper pleading. In the present case the proposed amendments do not change the nature of the suit and have been applied for at the earliest opportunity, after he was engaged as Counsel for the caveat or and found that the necessary pleadings have not been made in the written statement. He has relied upon the judgment of the Supreme Court in