IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VISHAL MISHRA th ON THE 16 OF JULY, 2024 MISC. PETITION No. 4449 of 2023 SMT. POOJA DANTALE AND OTHERS Versus SHRICHAND GOND AND OTHERS Appearance:

Shri Jaideep Sirpurkar - Advocate for the petitioners.

Shri Janak Lal Soni - Advocate for the respondent No.1.

ORDER This petition has been filed challenging the order dated 05.07.2023 passed by the First Civil Judge Senior Division Chhindwara (M.P.) in Regular Civil Suit No.100-A of 2018, whereby learned trial Court has allowed the application filed under Order 7 Rule 11 of CPC by the respondent No.1-plaintiff for amendment in the plaint.

It is the case of the petitioners-defendants No.2 to 6 that the respondent No.1 has filed a civil suit seeking relief of declaration of title and declaring sale-deed as null and void and for possession based on the allegation that the suit property mentioned in the plaint is his self-acquired property. In the year 2016-17, it came to the knowledge of respondent No.1 that the suit property is jointly recorded in the name of predecessor in interest of petitioners No.1 to 5. It is alleged that the respondent No.2 has fraudulently alienated the suit property vide registered sale deed dated 09.01.1986 to one Sakal Chand. The petitioners marked their presence in the civil suit and filed written statement Signature Not Verified Signed by: VINOD disputing the claim of respondent No.1. It was contended that they have purchased the suit property vide registered sale-deed dated 09.01.1986 and the possession was also delivered. They got their names mutated in the revenue records. The suit is barred by limitation. A specific plea with respect of Will was taken in the written statement. Despite there being specific pleading, no effort was made to make the amendment immediately. By way of amendment, additional relief of declaring the Will dated 25.12.1991 executed in favour of predecessor-in-interest of the petitioner as null and void.

The trial Court vide order dated 05.07.2023 has allowed the amendment application of the plaintiff which is not permissible. The amendment as sought is hit by the proviso appended to Order 6 Rule 17 of CPC. The Will was executed way back in the year 1991. The aforesaid assertion was made in the written statement which was filed on 24.08.2018. The factum of Will was mentioned in paragraph 20 of the written statement but despite the same, no amendment application was filed at the appropriate time. The application was filed after four years. The issues were already framed by the trial Court and the affidavit under Order 18 Rule 4 of CPC was also filed. The respondent No.1 was required to explain the due diligence in filing the application for amendment.

The counsel for the respondent No.1 has vehemently opposed the contentions and submitted that for the first time, the document i.e. Will was brought on record along with an affidavit which has been filed. Immediately thereafter, the application was filed seeking amendment, therefore, there is Signature Not Verified Signed by: VINOD no delay in filing the application.

Heard learned counsels for the parties and perused the record.

It is not in dispute that in paragraph 20 of the written statement, a specific pleading was made with respect to right being created by virtue of a Will was mentioned. Issues have been framed in the matter. Affidavit under Order 18 Rule 4 of CPC has also been filed. The fact of execution of a Will was in the knowledge in terms of the written statement but despite the same, the plaintiff has not made effort to incorporate the amendment at the relevant time. The proviso to Order 6 Rule 17 of CPC provides 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, party could not have raised the matter before the commencement of trial.

The respondent No.1 is required to explain the due diligence in fili