HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Civil Writ Petition No. 12118/2019

Panna Lal S/o Shri Prahlad Rai Sharma, Aged About 43 Years,

Resident Of Ward No. 6, Ladnu, Tehsil Ladnu, District Nagaur.

----Petitioner

Versus

1.

Pana Devi W/o Late Shri Rajendra Prasad, B/c Brahmin,

Resident Of Ward No. 06, Ladnu, Tehsil Ladnu, District

Nagaur.

2.

Deepak S/o Late Shri Rajendra Prasad Sharma, B/c

Brahmin, Resident Of Ward No. 06, Ladnu, Tehsil Ladnu,

District Nagaur.

3.

Rakesh Kumar Kumar S/o Late Shri Rajendra Prasad

Sharma, B/c Brahmin, Resident Of Ward No. 06, Ladnu,

Tehsil And District Nagaur.

4.

Prahlad Rai Sharma S/o Late Shri Duli Chand Sharma, B/c

Brahmin, Resident Of Ward No. 06, Ladnu, Tehsil And

District Nagaur.

----Respondents

For Petitioner(s)

:

Mr. Sushil Solanki

For Respondent(s)

:

JUSTICE DINESH MEHTA

Judgment

22/08/2019

By way of the present writ petition, the petitioner has

challenged the order dated 9.5.2019, passed by the learned Civil

Judge and Judicial Magistrate, Ladnu (hereinafter referred to as

the learned trial court), vide which the application under Order VI

(2 of 4)

[CW-12118/2019]

Rule 17 of the Code of Civil Procedure filed by the plaintiffs-

respondents nos.1 and 2 herein has been allowed.

Ffacts relevant for the present purposes are that the

plaintiffs (respondents nos.1 and 2 herein) filed a suit for

permanent injunction seeking an order that the defendants be

restrained from raising construction on the disputed vacant

portion. It was inter alia, contended that they are legal heirs of

Duli Chand, who was owner of the contentious property and thus,

entitled for half of the property. The defendants being other legal

representatives filed a written statement and came out with a

defence that the property in question has divested in them, by

virtue of Will dated 21.4.2008.

Faced with such situation, the plaintiffs moved an application

dated 20.4.2018 under Order VI Rule 17 of the Code of Civil

Procedure, 1908 and sought a leave to challenge the Will

aforesaid in the pending suit.

The present petitioners (defendants) opposed such

application, inter alia, for the reason that the amendment as

prayed for would change the nature of the suit.

The trial court allowed plaintiffs’ amendment application inter

alia, observing that at the time of institution of the suit, the

plaintiffs were not aware about existence of the will dated

21.4.2008 and as soon as they became aware of such will, they

laid appropriate challenge. While allowing the application, learned

trial court observed that the suit is at its initial stage and grant of

leave to amend the suit would avoid multiplicity of litigation.

Assailing the order dated 9.5.2019, passed by the trial court,

learned counsel for the petitioner submitted that initially the suit

was filed for permanent injunction and by way of the impugned

(3 of 4)

[CW-12118/2019]

order, the same has been converted to a suit for cancellation of

will; such change in the nature of suit is impermissible in law.

I have heard learned counsel for the petitioner and perused

the material available on record.

The principles of grant of amendment under Order VI Rule

17 of the Code are well settled; an application for amendment has

to be examined on various aspects, on the principles which have

been enunciated by Hon'ble Supreme Court in the case of

Revajeetu Builders and Developers Vs. Narayanaswamy &

Sons & Ors. reported in (2009) 10 SCC 84.

Merely because the nature of the suit would change,

consequent to the amendment sought, the application cannot be

turned down, particularly when, dismissal of the application for

amendment would lead to multiplicity of litigation on the one hand

and on the other, it will result in failure of justice. As against this,

its acceptance would facilitate and complete adjudication