Court and the same was allowed vide order dated 28.8.2017 and thereafter, the petitioners moved an application under Order 6 Rule 17 of CPC seeking certain amendment in the written statement with regard to will deed dated 27.10.2008 which is clearly pleaded by the plaintiff in the plaint at paragraph No.11 & 16. The existence of the will deed has not been denied by the plaintiff thereafter, the original will deed was obtained by the petitioners from the Court of Civil Judge, Ghazipur, U.P. and it was filed before the learned trial Court alongwith an application under Order 8 Rule 1(3) of the CPC and the same was allowed by the learned trial Court on 28.8.2017. When the will deed was taken on record, it became imperative for the petitioners to move an application for amendment to bring in the existence and to prove the genuineness of the will deed. The amendment which has been sought by the petitioners does not change the nature of suit as the will deed has already been pleaded in the paragraph No.11 & 16 of plaint. The Hon’ble Supreme Court in the matter of Life Insurance Corporation of India (supra) in paragraph 70 (ix) has held that “the delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation be framed separately for decision.” Whereas in paragraph 70 (x) it has been held that “where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed.” In this regard, it would be worthy to mention that the existence of the will deed has been pleaded by the plaintiff in paragraph No.11 & 16 of plaint, therefore, the defendants are not setting up a new case, foreign to the case set up in the plaint.
