ORDER

Date : 03-12-2021 Heard Mr. B Dutta, learned counsel for the petitioner and Mr. SC Keyal, learned counsel for the respondent No.1.

This is an application under Article 227 of the Constitution of India challenging the order dated 17.08.2017 whereby the composite application seeking amendment under Order VI Rule 17, the impleadment under Order I Rule 10(2) and for grant of leave to bring the documents on record under Order VII Rule 14 (3) was allowed vide the impugned order.

The brief facts of the case is that the respondent No.1 had instituted the suit being Title Suit No.33/2013 seeking inter-alia for th declaration that the respondent No.1 has the right on the 1/8 share of the landed property of late Hanuman Prasad Agarwal; for a preliminary decree for partition, for permanent injunction etc. In the said suit the defendant No.1 had filed written statement denying the statements and allegations made in the plaint and also denying the entitlement of the plaintiff/respondent No.1 herein to partition.

It is also relevant at this stage to note that late Hanuman Prasad Agarwal (since deceased) had left an alleged will bequeathing his properties in favour of the wife of defendant No.1 in the suit. Consequently, a probate application was filed by the wife of the defendant No.1 Smt. Ranju Devi Agarwal who was the executor and the legate of the said alleged will, before the District Judge, Tinsukia for grant of probate which was registered and numbered as Misc Probate Case No.150/2016. The plaintiff in Title Suit No.33/2013 who is the opposite party No.1 in the said probate proceedings filed a written statement contesting the said will in the said written objection filed on 20.03.2014. In the said written objection he had specifically mentioned about the Deed of Gift being 1681/2009 dated 06.11.2009. It has been brought to my attention that in view of the stand taken by the respondent No.1 herein in the said probate proceedings, the Probate Court converted the said proceedings into title suit and the same is presently pending before the Court of the Addl.

District Judge, Tinsukia.

Thereafter, on 25.05.2017 the composite application was filed under Order VI Rule 17 read with Order I Rule 10(2) and Order VII Rule 14 by the plaintiff in Title Suit No.33/2013 which was registered and numbered as Misc (J) Case No.26/2017. The petitioner herein had duly objected to the said application on various grounds including the ground of limitation.

The learned Court below vide an order dated 17.08.2017 permitted the said amendment sought for and had also allowed the prayer for impleadment and granted leave to produce the documents. It is against the said order the petitioner is before this Court under Article 227 of the Constitution of India.

I have heard Mr. B Dutta, learned counsel for the petitioner who submits that the sole point involved herein is that the plaintiff as opposite party No.1 in the probate proceedings have categorically stated on

20.03.2014 about the Deed of Gift bearing No.1681/2009 dated 06.11.2009 which would really go to show that he had due knowledge about the same Deed of Gift as on the date of filing of his written objection and thereupon on 25.05.2017 he had filed the said application seeking amendment and the Court below had permitted the amendment challenging the said gift without taking into consideration that if the said amendment is permitted it would severely affect the vested rights of the petitioner which has accrued on account of non challenge of the said Deed of Gift during the prescribed period of the petition.

On the other hand, Mr. SC Keyal, learned counsel for the respondent submits that the said averment made out in the written objection is based upon the statement made in the probate application and the plaintiff did not have in his possession the said Deed of Gift in question and as such, the question of the amendment sought for to include the prayer of challenge to the registered Deed of Gift cannot be said