Equivalent Citation- AIR 2003 Cal 148; (2002) 3 CALLT 503 HC
Case type- Civil appeal
Case no.-
Decided on- 22.08.2002
Petitioner- Ajit Kumar Saha
Respondent- Ashit Kumar Saha
Justice- Hon’ble Justice A.K. Mitra,
Statues Referred- Indian Succession Act, 1925- Section 276; Code of Criminal Procedure- Order 6 Rule 17 read with Section 151;
Cases referred- Modi Spinning & Weaving Mills Co. … vs Ladha Ram & Co; Narendra Singh Sengar v. Smt. Malti Devi and Ors. B.K. Narayanan Pillai v. Parameshwar Pillai and Ors.; Rajdeo Mishra vs Ram Pravesh Pandey & Ors; M/S. Estralla Rubber vs Dass Estate (Private) Ltd; Khanta Bala Biswas And Ors vs Abinash Chandra Biswas And Ors.
Facts
- This revisional application has been filed in response to the learned Chief Judge’s Order No. 38 dated 6.3.02 in O.C. No. 5/1999 in the City Civil Court of Calcutta.
- The opposing party filed an application for award of probate of the last will and testament of the deceased Sudhir Chandra Saha, son of Late Nandalal Sana of 16A, Mondal Street, P.S. Jorabagan, Calcutta-700 006 under Section 276 of the Indian Succession Act, 1925. The abovementioned application for probate was filed with the learned Chief Judge of the City Civil Court in Calcutta as Probate Case No. 73/1998.
- When the petitioner learned of the aforementioned probate procedure, he filed an objection, and the case No. 73/1998 was dismissed, and the case was transferred to O.C. No. 5/1999, which is the current case.
- On May 21, 1999, the petitioner filed a written objection.
- The will’s applicants withheld all material facts and submitted this application for the grant of probate with the malafide goal of stealing the petitioner’s property. Prior to the execution of the alleged will, the dead Sudhir Chandra Saha executed two previous wills in the years 1990 and 1994, which the opposing parties failed to reveal in the said application.
- The testator (now deceased) was around 87 years old and had been completely under the control or influence of the opposing parties, who were the applicants in the probate procedures, since December 1999 until his death. Sudhir Chandra Saha was admitted to Marowari Relief Society Hospital in December 1993, and the petitioner covered all of Sudhir Chandra Saha’s medical and shradha ceremony expenditures. According to Hindu traditions and customs, the petitioner executed the shradha ceremony by setting fire to the deceased Sudhir Chandra Saha.
- The petitioner then filed a motion to amend the original objection to the application for grant of probate of the Will under Order 6 Rule 17 of the Code of Civil Procedure read with Section 151. However, the opposing parties did not file any objections to the said application for amendment of the objection, and the petitioner claims that the opposing parties did not raise any objections to the said application when the learned Court gave time for filing it.
- By order dated March 6, 2002, the learned Chief Judge dismissed the abovementioned application for amendment. The petitioner has moved up to this Court to challenge the aforementioned order of dismissal of the application for amendment passed by the learned Chief Judge, City Civil Court at Calcutta by his order dated 6th March, 2002 in O.C. No. 5/1999.
Fact in issue
Whether the will in question was executed under duress or undue influence, or whether it was executed voluntarily and at the free will of the testator in his good and proper judgment?
Petitioner contention
- That the order in question is void in law and that the learned trial judge issued it without considering the provisions of Order 6 Rule 17 of the Code of Civil Procedure. The assailed order contains major irregularities, and the learned trial Judge erred in exercising his jurisdiction by refusing to grant the application for revision.
- That the learned trial judge made a mistake when he stated that he “wanted to add depth which would modify the essence of this original case.” The Court can grant an amendment at any point throughout the proceedings, and that this revision was required to address the probate dispute.
- That amendment can be made at any point during the proceedings, even if the position taken is contradictory or inconsistent, as long as the amendment’s goal is to resolve the disagreement or issue at hand and put the matter to rest for good.
- That even if the amendment sought by his clients does not result in a contradictory position, if that is the case and the pleas are inconsistent, the amendment can be or should be allowed because, in the instant case, the amendment sought would conclusively settle the dispute if allowed. This petition includes a copy of the amendment application as well as the objectors’ objection.
“Amendment of Pleadings”- Order 6 Rule 17 of the Code of Civil Procedure: “ At any point throughout the proceedings, the Court may enable either party to revise or amend his pleadings in such a manner and on such conditions as the Court deems just, and all such amendments must be for the purpose of resolving the true issue in dispute between the parties.”
Respondent contention
- The learned trial Judge was correct in rejecting the amendment application at this late stage, when the petitioner/executor has accrued some right as a result of the trial’s initiation and/or progress to a certain stage.
- The plea in the amendment application is contradictory, and that the amendment was sought with the malafide goal of defeating the claim of the will’s beneficiaries. The case was started in 1999. PW 1 Shri Prabir Bose, who was examined on 8.8.01, was the will’s identifying witness. On 29.8.01, PW 2 Ashit Kumar Saha, petitioner/executor No. 1, was examined and cross-examined (in part), and the amended application was verified and filed on 6.12.01. After the PW 1 was examined and the PW 2’s examination-in-chief was completed, the petitioner herein modified their attitude and submitted this amendment application to improve their case.
- An amendment taking a different position at such a late point, after the procedure has progressed to some amount, should not be allowed in the trial Court, and the learned trial Judge correctly rejected the amendment motion.
- If such an addition is permitted, the petitioner in the probate action will be severely harmed, and the current revisional application should be dismissed.
Ratio decendi
- The words “at any stage of the proceedings” and “for the purpose of identifying the genuine subject in controversy” are crucial in this section. The entire object and purpose of introducing Order 6 Rule 17 into the Code of Civil Procedure is to avoid multiple proceedings, shorten the litigation, and settle the entire dispute once and for all, though any amendment should not or must not jeopardize the case of the other side in such a way as to render the other side non-suitable.
- In this scenario, the court disagree with respondent’s assertions that the amendment’s intent is malafide or that it completely extinguishes the petitioner’s/cause. executor’s I do, however, agree with respondent’s assertions that the application or change was filed at a late stage. However, as previously mentioned from numerous cases or a simple reading of the clause, the Court may approve an amendment at any stage of the proceedings, even if the plea is illogical or contradictory, if no prejudice is caused to the opposing party. As previously stated, since the will’s fate is to be resolved definitively, no concern of prejudice is raised by the amendment.
Judgement
- In light of the foregoing, the court vacate the impugned order of the learned trial Judge, Order No. 38 dated 6.3.02 in O.C. No. 5/1999, and allow the change sought herein to be made subject to payment of cost assessed at Rs. 1080/- to be paid by the petitioner to the opposite parties (petitioner in the probate proceeding).
- As a result, the revisional application was dismissed.
(BY PRITI PODDAR)
