Navita Arjun Vohra v. Nitin Arjun & Anr

1. This application has been filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure, 1908 (in short, ‘CPC’), seeking permission to amend the Evidence by way of Affidavit dated 27.03.2017.

2. I may herein itself note that the provisions of Order VI Rule 17 of the CPC would, in fact, not apply. The application is, therefore, being considered as one filed under Section 151 of the CPC.

3. It is pleaded in the application that the plaintiff was aged only around 11 years in the year 1977. From her recollection, she had, in her Evidence by way of Affidavit, stated in paragraph no.23 thereof that her father late Shri Ratan D. Arjun was posted in Hatigarh (Assam) in the summer of 1977 and was transferred to Dehradun (Uttarakhand), and in the course of journey, the plaintiff travelled on a special train from Hatigarh (Assam) to Dehradun (Uttarakhand), which journey took five days, and she spent the remaining holidays at Dehradun (Uttarakhand) and returned to Delhi only after the school resumed.

4. The plaintiff states that as she had doubts about the same, she had addressed a request dated 23.03.2017 for information under the Right to Information Act, 2005 from the concerned authorities, seeking the posting details of her father. In Reply dated 31.03.2017, the PIO has disclosed that the regiment of her father was in Dehradun on 03.06.1977, however, previously the regiment was at Hatigarh (Assam) and had moved from Hatigarh (Assam) to Dehradun (Uttarakhand) in January, 1977. The plaintiff, therefore, wishes to make an amendment in paragraph no.23 of her evidence by way affidavit, to now state that it was in the winter holidays of December, 1976 that she along with her brother and mother had joined her father in Hatigarh (Assam), where he was commanding his regiment and thereafter, the regiment shifted to Dehradun (Uttarakhand).

5. She maintains that as far as her recollection is concerned, she had travelled on a special train with the whole unit’s officers, soldiers and families from Hatigarh (Assam) to Dehradun (Uttarakhand), which journey lasted five days, however, further wishes to state that she, her mother, and brother did not go all the way to Dehradun (Uttarakhand) as the schools were about to re-open and instead disembarked in Delhi itself. She further wishes to state that she along with her brother and mother travelled from Delhi to Dehradun (Uttarakhand) sometime in May, 1977 to spend the summer holidays with her father.

6. The learned counsel for the plaintiff submits that the plaintiff was aged around 11 years in the year 1977. The earlier Evidence by way of Affidavit was filed on her recollection that the father was, during the relevant period, posted in Hatigarh (Assam) and was, thereafter, relocated to Dehradun (Uttarakhand). He submits that the main case of the plaintiff is that on 03.06.1977, when the alleged oral family settlement is stated to have been arrived at Delhi, the family of the plaintiff was at Dehradun (Uttarakhand). The plaintiff maintains the said stand even in the amended Evidence by way of Affidavit. He submits that, therefore, there is no admission which is sought to be withdrawn by way of the amendment nor a new case is sought to be set up.

7. On the other hand, the learned senior counsel appearing for the defendant no.1 submits that, keeping in view the age and health of the defendant no.2, the defendant no.2 has already been examined first. Her examination was based on the Evidence by way of Affidavit filed by the plaintiff.

8. He submits that though the plaintiff was aware that her earlier assertion of the Unit of the father shifting from Hatigarh (Assam) to Dehradun (Uttarakhand) in summer of 1977 was false, as is reflected in her own case now that she had received this information in response to an RTI vide Letter dated 31.03.2017, the plaintiff took no steps to file the present application earlier. This application has been filed only after a gap of seven years and after the cross-examination of defendant no.2 has concluded. He submits that, therefore, the plaintiff is not entitled to amend the Evidence by way of Affidavit by setting up a new case. He submits that the plaintiff has not sought to amend the plaint where similar averments have been made as in the original Evidence by way of Affidavit.

9. I have considered the submissions made by the learned counsels for the parties.

10. Once the plaintiff has realised that a statement made by her in her Evidence by way of Affidavit may not be correct, the plaintiff cannot be forced to continue with the same statement when her Evidence by way of Affidavit is tendered in Court. The plaintiff is entitled to seek correction of that mistake made in the Evidence by way of Affidavit and present the facts which according to her are true when she tenders her Evidence by way of Affidavit. The plaintiff cannot be forced to commit a perjury by still giving evidence on a fact which she knows to be false.

11. As far as the defendants are concerned, they would have full opportunity to cross-examine the plaintiff not only on the amended affidavit but also by confronting her with earlier pleadings and the earlier Evidence by way of Affidavit.

12. As regards the assertion of the learned senior counsel for the defendant no. 1 that prejudice shall be caused to the defendants if the plaintiff is allowed to change her Evidence by way of Affidavit as the defendant no. 2 already stands examined as a witness, he has been unable to show from her cross-examination if any question on the earlier stand of the plaintiff was put to the witness. In fact, the plaintiff confronted the witness with the letter dated 31.03.2017 received by her in reply to her query under the RTI, to refresh the memory of the witness that her husband was posted at Dehradun in June 1977. The witness admitted to this, though further stated that on 03.06.1977, her husband was in Delhi and stated that she did not remember if she along with her children had gone to Dehradun and stayed with her husband for the summer vacation of the children. The present is not a stage to consider the testimony of the defendant no. 2 as a witness. Suffice it to say that with the defendant no. 2 having been confronted with a case which the plaintiff now wishes to contend in her amended Evidence by way of Affidavit, the question of the defendants suffering any prejudice by the change of the Evidence by way of Affidavit, therefore, does not arise.

13. Accordingly, the present application is allowed. The amended Evidence by way of Affidavit of the plaintiff is taken on record.

14. It is, however, clarified that the defendants shall be at liberty to cross-examine the plaintiff based on her pleadings and on the earlier Evidence by way of Affidavit that has been filed, by confronting her with the same.

15. The parties shall jointly approach the learned Local Commissioner for fixing the dates for recording the further evidence of the parties.