Patna High Court
Smt. Savitri Devi vs Shri Ram Sewak Sah on 22 July, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.2054 of 2017
======================================================
Smt. Savitri Devi Wife of Shri Nard Sah @ Narad Prasad, Resident of
Village- Mahua Singh Rai, P.S.- Mahua, District- Vaishali through her
constituted power of attorney holder Purshottam Kumar, Son of Sri Narad
Prasad, Resident of Village- Mahua Singh Rai, P.S.- Mahua, District- Vaishali.
... ... Petitioner/s
Versus
Shri Ram Sewak Sah Son of Ram Khelawan Sah and Karta Putra of Late
Babulal Sah, Resident of Mohalla- Brahampura, P.S.- Brahmpura, P.O.-
M.I.T., Town and district- Muzaffarpur.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Jitendra Kishore Verma, Advocate
Mr. Anjani Kumar, Advocate
Mr. Ravi Raj, Advocate
Mr. Shreyash Goyal, Advocate
Mr. Abhishek Kumar Srivastava, Advocate
Ms. Kumari Shreya, Advocate
Mr. Achyut Kumar, Advocate
For the Respondent/s : Mr.Jitendra Prasad Singh, Sr. Advocate
Mr. Rajeev Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 22-07-2025
The present petition has been filed for setting aside
the part order dated 09.08.2017 passed in Probate Case No. 23
of 2009 (O.S. No. 02 of 2015) by learned Additional District
Judge, Muzaffarpur, whereby and whereunder by a common
order on three petitions, the amendment petition dated
15.03.2017
filed by the defendant/petitioner for amendment in
the written statement has been rejected.
2. Briefly stated, the facts of the case as it appears
Patna High Court C.Misc. No.2054 of 2017 dt.22-07-2025
2/17
from the record are that the plaintiff/respondent has a filed
Probate Case No. 23 of 2009 for grant of probate or letters of
administration in respect of registered Will dated 22.04.1970
executed by his father namely, Ram Khelawan Sah in favour of
the plaintiff/respondent. The plaintiff/respondent made an
averment in the probate petition that Will dated 22.04.1970 was
scribed by late Parasnath on 30.03.1970 at the instance of
testator Ram Khelawan Sah, who also wanted to execute a gift
deed in favour of his daughter Savitri Devi, hence, the testator
deferred the execution of the Will and ultimately on 04.05.1970,
Ram Khelawan Sah presented the deed of Will and deed of gift
for registration and both the deeds were ordered to be registered
accordingly. The defendant/petitioner appeared and filed her
objection/written statement on 14.01.2015. The
defendant/petitioner took a number of objection, inter alia,
submitting that the alleged Will is manipulated one and though
the testator died on 20.04.1983, case was filed after lapse of 25
years when almost all the witnesses including the attesting
witnesses have died. The defendant/petitioner filed a petition on
15.03.2017 under Order VI Rule 17 of the Code of Civil
Procedure (hereinafter as ‘the Code) for amendment in the
written statement/objection submitting that some material
Patna High Court C.Misc. No.2054 of 2017 dt.22-07-2025
3/17
particulars were left to be mentioned inadvertently which are
necessary for the proper adjudication of the matter and further
stating that particulars sought to be brought through amendment
have already been settled as one of the issues in this case. Thus,
the amendment would not change the nature of the probate case.
The plaintiff/respondent filed his rejoinder on 24.03.2017 to the
petition dated 15.03.2017 claiming that the petition has been
filed to harass the plaintiff and to delay the disposal of the case.
Vide order dated 09.08.2017, the learned trial court rejected the
prayer for amendment in the written statement which is under
challenge before this Court.
3. Learned counsel appearing on behalf of the
petitioner submitted that the order of the learned trial court is
not justifiable as without examining the necessity and relevance
of the amendment sought for by the defendant/petitioner, the
prayer for amendment was rejected by a bald and cryptic
finding. Learned counsel, discussing the application of
amendment, submitted that the defendant/petitioner has
specifically challenged the genuineness of the Will and has
categorically averred in paragraph no. 9 that the said Will has
been brought into existence fraudulently and illegally. Further
from paragraph no. 7 to 16 of the written statement, it is
Patna High Court C.Misc. No.2054 of 2017 dt.22-07-2025
4/17
apparent that the defendant had already asserted that Will in
question has been brought into existence by resorting to fraud.
But while challenging the Will in question some better
particulars were left to be mentioned inadvertently in the written
statement and for this reason, amendment in written statement
becomes necessary. Learned counsel further submitted that the
details and particulars with regard to fraud being committed in
preparation of the so called Will are being sought to be
introduced in the pleadings for determination of real controversy
between the parties. The learned trial court did not consider that
the amendment is explanatory in nature and has been sought for
to provide better particulars for the case already pleaded which
are relevant for adjudication of one of the issues, which already
stands settled. Moreover, the plaintiff has been litigating on the
said particulars by cross-examination of the witnesses and no
prejudice is going to be caused to the plaintiff. Learned counsel
further submitted that the learned trial court while refusing the
amendment wrongly recorded finding that the defendant wants
to incorporate a new case when the facts were already pleaded
and only better particulars were being added. Learned trial court
further committed an error in holding that the amendment
appears to be unnecessary and was not bonafide. Learned trial
Patna High Court C.Misc. No.2054 of 2017 dt.22-07-2025
5/17
court did not consider that the amendment is necessary for
determining the real question in controversy between the parties
that the Will is genuine or not. Therefore, such finding is
perverse. Moreover, the amendment would not cause any
prejudice to the plaintiff. Learned counsel further submitted that
though the amendment has been sought after commencement of
trial but Order VI Rule 17 of the Code confers wide powers on
the court to allow amendment petitions on account that the
amendments are necessary for the purpose of determining the
real question in controversy between the parties. Moreover,
amendments in the written statement are to be liberally allowed.
Learned counsel thus submitted that the reasons assigned in the
impugned order for declining the amendment in the written
statement is arbitrary and shows complete non-application of
mind. Learned counsel referred to case of Krishna Kant Prasad
Vs. Sudheshwar Yadav & Ors., reported in 2024 (1) BLJ page
77, wherein in similar circumstances, learned Co-ordinate
Bench upheld the order allowing amendment on the ground that
almost all the proposed amendments have already been
incorporated in the affidavits of examination-in-chief and the
witnesses have been cross-examined at length by the
defendants. For this reason, the amendments were held to be
Patna High Court C.Misc. No.2054 of 2017 dt.22-07-2025
6/17
purely explanatory in nature and thus allowed. Learned counsel
submitted that the learned Co-ordinate Bench relied on the
decision of Mohinder Kumar Mehra Vs. Roop Rani Mehra &
Ors., reported in (2018) 2 SCC 132, wherein the Hon’ble
Supreme Court held that the dominant purpose of not allowing
the amendment after commencement of trial is to prevent
surprises. No prejudice was going to be caused to the defendant
as the evidence was led subsequent to the filing of the
amendment application for it was the case of the plaintiff that
parties have led evidence even on the amended pleading,
allowing the amendment was mere formality since the defendant
in no manner can be said to be prejudiced by the said
amendment and Hon’ble Supreme Court further held that the
looking to the purpose and object of the proviso, in the case at
hand, it cannot be said that the amendment application filed
could not be considered due to bar of the proviso. Learned
counsel further submitted that the petitioner does not want to
lead any evidence if the amendment is allowed and reiterated
that no prejudice is going to be caused to the other side.
Moreover, if pleading is not there, the petitioner would not be
able to prove her case though evidence may be on record.
Learned counsel next referred to the case of Dinesh Goyal alias
Patna High Court C.Misc. No.2054 of 2017 dt.22-07-2025
7/17
Pappu Vs. Suman Agarwal (Bindal) and Others, 2024 OnLine
SC 2615, wherein it has been observed that if the issues are
pivotal and are necessary for determination of controversy
between the parties, even amendment late in time could also be
allowed. Learned counsel further referred to the case of Raj
Kumar Bhatia Vs. Subhash Chander Bhatia, AIR 2018 SC
100 in which it has been held that entering into the merits of the
case which was sought to be set up by the appellant in the
amendment was impermissible. The Hon’ble Supreme Court
further observed that whether an amendment should be allowed
or not, is not dependent on whether the case which is proposed
to be set up will eventually succeed at the trial. Lastly, the
learned counsel referred to the decision of learned Co-ordinate
Bench of this Court in the case of Maheshwar Narayan Shukla
Vs. Ajab Narayan Singh, 2022(5) BLJ 276 in which reliance
was placed on the case of Chander Kanta Bansal Vs. Rajinder
Singh Anand, reported in (2008) 5 SCC 117, wherein the
Hon’ble Supreme Court held that the liberal principles which
guide the exercise of discretion in allowing the amendment are
that multiplicity of proceedings should be avoided, that
amendments which do not totally alter the character of an action
should be granted, while care should be taken to see that
Patna High Court C.Misc. No.2054 of 2017 dt.22-07-2025
8/17
injustice and prejudice of an irremediable character are not
inflicted upon the opposite party under pretence of amendment
and thus, learned Co-ordinate Bench held that though the
proviso limits the scope of pleadings, but would still vest
enough powers in courts to deal with the unforeseen situations
whenever they arise. Therefore, it is neither a complete bar nor
shuts out entertaining of any later application. Thus, learned
counsel submitted that the amendment sought to be incorporated
is merely elaboration and is relevant with the prime issue as to
whether the Will is genuine or forged and would not lead to
changing the nature of the case and would not cause any
prejudice to the other side. Hence, the amendment needs to be
allowed.
4. Learned senior counsel appearing on behalf of
plaintiff/respondent vehemently contended that there is no merit
in the present petition as the impugned order does not suffer
from any infirmity. Perusal of the proposed amendment shows
that the defendant/petitioner wants to plead a new fact by
mentioning that signature of Dwarika Sah as a witness was
forged. The respondent has filed the case under Section 276 of
the Indian Succession Act for grant of probate of registered Will
dated 22.04.1970 executed by late Ram Khelawan Sah with
Patna High Court C.Misc. No.2054 of 2017 dt.22-07-2025
9/17
respect to the property described in the Will and on the same
day testator executed a gift deed in favour of the present
petitioner Savitri Devi and both parties are in possession of their
respective properties given in the Will as well as gift. Learned
senior counsel further submitted that the present petitioner has
also filed Misc. Appeal No. 167 of 2015 before this Court
against the order of status quo dated 23.01.2015 passed by
learned trial court but the same was dismissed vide judgment
dated 06.12.2017 with a direction to the learned trial court to
dispose of the case as expeditiously as possible. In the probate
case evidence of both the parties was closed and argument was
completed in the year 2023 but due to transfer of learned
Presiding Officer, the case could not be disposed of. The
argument of both the parties have been completed and the case
is on the verge of disposal. Therefore, the amendment has been
sought at a very late stage. The learned trial court has passed the
order taking into consideration the fact that after closure of
evidence of the respondent and after examination of so many
witnesses on behalf of the petitioner, the proposed amendment
has been filed in order to delay the disposal of the case. Learned
senior counsel further submitted that the petitioner has utterly
failed to show any due diligence for bringing the amendment at
Patna High Court C.Misc. No.2054 of 2017 dt.22-07-2025
10/17
such late stage. Learned senior counsel further submitted that
the Hon’ble Supreme Court has deprecated the tendency of
allowing the amendments after commencement of trial and in
this regard learned senior counsel relied on the case of
Revajeetu Builders and Developers Vs. Narayanaswamy and
Sons and others, reported in (2009) 10 SCC 84 and relied on
paragraph 63 and 64 which read as under:-
“63. On critically analyzing
both the English and Indian cases, some
basic principles emerge which ought to
be taken into consideration while
allowing or rejecting the application for
amendment:
(1) Whether the amendment sought is
imperative for proper and effective
adjudication of the case?
(2) Whether the application for
amendment is bona fide or mala fide?
(3) The amendment sought not cause
such prejudice to the other side which
cannot be compensated adequately in
terms of money;
(4) Refusing amendment would in
fact lead to injustice or lead to
multiple litigation;
(5) Whether the proposed
amendment constitutionally or
fundamentally changes the nature
and character of the case? And(6) As a general rule, the court
should decline amendments if a fresh
Patna High Court C.Misc. No.2054 of 2017 dt.22-07-2025
11/17suit on the amended claims would be
barred by limitation on the date of
application.
These are some of the
important factors which may be
kept in mind while dealing with
application filed under Order 6
Rule 17. These are only illustrative
and not exhaustive.
64.The decision on an
application made under Order 6
Rule 17 is a very serious judicial
exercise and the said exercise
should never be undertaken in a
casual manner. We can conclude
our discussion by observing that
while deciding applications for
amendments the courts must not
refuse bona fide, legitimate, honest
and necessary amendments and
should never permit male fide,
worthless and/or dishonest
amendments.”
Learned senior counsel further submitted that if the
amendment is allowed at this stage, the contention, of the
learned counsel for the petitioner, that the petitioner would not
lead further evidence, is not of importance for the reason that if
amendment is allowed, the respondent would be required to
rebut the same. When son of deceased witness Dwarika Sah had
already been examined and cross-examined, the matter would
unnecessarily get delayed and complicated. Thus, learned senior
Patna High Court C.Misc. No.2054 of 2017 dt.22-07-2025
12/17
counsel submitted that the impugned order does not suffer from
any infirmity and the same needs no interference by this Court.
5. I have given my thoughtful consideration to the
rival submission of the parties and perused the record. The
petitioner has challenged the part of order dated 09.08.2017 as
by the same order three petitions have been disposed of
including one filed by the defendant/petitioner under Order VI
Rule 17 of the Code. Order VI Rule 17 of the Code reads as
under:-
“17. Amendment of pleadings.- The
Court may any any stage of the
proceedings allow either party to
alter or amend his pleadings in such
manner and on such terms as may be
just, and all such amendments shall
be made as may be necessary for the
purpose of determining the real
questions in controversy between the
parties.
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.”
Though amendments at pre-trial are to be allowed
liberally, the embargo has been placed on amendments sought
by the parties after commencement of trial. The statute prohibits
Patna High Court C.Misc. No.2054 of 2017 dt.22-07-2025
13/17
amendment after commencement of trial unless the parties
seeking the amendment could show that despite due diligence
he could not have sought amendment earlier and prior to the
commencement of trial. The Hon’ble Supreme Court in the case
of Revajeetu Builders and Developers Vs. Narayanaswamy
and Sons and others and subsequently in Basavaraj Vs. Indira
& Ors. has come down heavily on the party who seek
amendment after commencement of trial if the facts of the
amendment sought for was within knowledge of party from very
beginning. The Hon’ble Supreme Court in paragraph 9, 10 and
11 in the case of Basavaraj (supra) has held as under:-
“9. This Court in M. Revanna v. Anjanamma
(Dead) by legal representatives and others
opined that an application for amendment
may be rejected if it seeks to introduce totally
different, new and inconsistent case or
changes the fundamental character of the suit.
Order VI Rule 17 C.P.C. prevents an
application for amendment after the trial has
commenced unless the Court comes to the
conclusion that despite due diligence the
party could not have raised the issue. The
burden is on the party seeking amendment
after commencement of trial to show that in
spite of due diligence such amendment could
not be sought earlier. It is not a matter of
right. Paragraph No. 7 thereof is extracted
below:
“7. Leave to amend may be refused if it
introduces a totally different, new and
inconsistent case, or challenges the
fundamental character of the suit. The proviso
Patna High Court C.Misc. No.2054 of 2017 dt.22-07-2025
14/17to Order 6 Rule 17 CPC virtually prevents an
application for amendment of pleadings from
being 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 the trial. The proviso, to an
extent, curtails absolute discretion to allow
amendment at any stage. Therefore, the
burden is on the person who seeks an
amendment after commencement of the trial
to show that in spite of due diligence, such an
amendment could not have been sought
earlier. There cannot be any dispute that an
amendment cannot be claimed as a matter of
right, and under all circumstances. Though
normally amendments are allowed in the
pleadings to avoid multiplicity of litigation,
the court needs to take into consideration
whether the application for amendment is
bona fide or mala fide and whether the
amendment causes such prejudice to the other
side which cannot be compensated adequately
in terms of money.”
(emphasis supplied)
10. Initially, the suit was filed for partition and
separate possession. By way of amendment,
relief of declaration of the compromise decree
being null and void was also sought. The same
would certainly change the nature of the suit,
which may be impermissible.
11. This Court in Revajeetu‘s case (supra)
enumerated the factors to be taken into
consideration by the court while dealing with
an application for amendment. One of the
important factor is as to whether the
amendment would cause prejudice to the other
side or it fundamentally changes the nature
and character of the case or a fresh suit on the
amended claim would be barred on the date of
Patna High Court C.Misc. No.2054 of 2017 dt.22-07-2025
15/17
filing the application.”
6. In the instant case, the petitioner claims the
amendment is only with regard to providing better particulars to
the case already pleaded and issues already framed on the point
and no prejudice being caused to the plaintiff/respondent on this
account. But I fail to understand if this was the situation, why
the better particulars were not introduced at the time of filing of
written statement? Thereafter, another question which arises is
why the amendment has not even been sought when the
evidence of the plaintiff was recorded and why it has been
sought after the evidence of the defendant/petitioner was being
recorded. It has been apparent that the defendant was in full
possession of information but did not file the petition for
amendment. If there is no due diligence being shown by the
defendant/petitioner, the amendment sought at this stage would
be hit by the proviso to Order VI Rule 17 of the Code. The
authorities cited by the learned counsel for the petitioner could
not be applied in the present case for the reason that facts are
not similar. In Mohinder Kumar Mehra (supra), the
amendment application has been filed before the parties could
have led their evidence. Further in the case of Dinesh Goyal
(supra), the cross-examination of plaintiff was not done then the
amendments were sought. Further, reliance placed on Raj
Patna High Court C.Misc. No.2054 of 2017 dt.22-07-2025
16/17
Kumar Bhatia (supra) is misplaced for the reason that in the
present case the amendment has not been denied by learned trial
court entering into the merits of the case. Similarly, reliance to
Krishna (supra) are of no help considering the distinguishable
facts. The legal principle that a case is only an authority for
what it actually decides, to be kept in the back of mind as
observed by Earl of Halsbury L.C. in Qiinn V. Leathem and
discussed in the case of State of Orissa Vs. Sudhansu Sekhar
Misra and Others, reported in AIR 1968 SC 647.
7. Further, it is an admitted fact that the issues about
genuineness of Will has already been framed and evidence has
been led on this point so it could not be said that unless the
amendment is allowed, the real controversy between the parties
could not be decided. Rather it appears that the
defendant/petitioner wants to fill up the gaps in her case.
Therefore, it cannot be said that the amendment sought for is
imperative for proper and effective adjudication of the case.
8. In the light of discussion made herein before, I
do not find any error of jurisdiction by the learned trial court in
passing the impugned order dated 09.08.2017 hence, the same is
affirmed. Accordingly, the present petition stands dismissed.
9. It is made clear that I have not expressed any
Patna High Court C.Misc. No.2054 of 2017 dt.22-07-2025
17/17
opinion on the merits of the case and the case shall be decided
by the learned trial court on the material available before it
uninfluenced by the disposal of the present civil miscellaneous
petition.
(Arun Kumar Jha, J)
DKS/-
AFR/NAFR AFR/NAFR CAV DATE 30.06.2025 Uploading Date 23.07.2025 Transmission Date NA
