C.R.No.5406 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5406 of 2011 Date of decision: 12.10.2011 [ENTITY] Petitioner Versus [ENTITY] and another Respondents CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. [ENTITY], Advocate for the petitioner. [ENTITY],J.
1. In this revision petition filed under Article 227 of the Constitution of India, the plaintiff-petitioner has prayed for setting aside order dated 14.6.2011 passed by the trial court whereby an application for amendment of the plaint had been declined.
2. Briefly, the facts may be noticed. The plaintiffs filed a suit for permanent injunction on 20.11.2007 restraining the defendant from interfering in the suit property. A prayer was also made for restraining the defendant from changing the nature of the property by raising any construction thereon. The defendant filed written statement alleging that the suit property was purchased by the father of the plaintiffs vide sale deed dated 24.12.1980. The sale deed was alleged to be an agreement executed by Smt.[ENTITY], General Power of Attorney of [ENTITY]. The said document was alleged to be got executed fraudulently and in collusion with said [ENTITY] (father of the plaintiffs) just to create a title in his favour. The Will of the plaintiffs was also disputed. Thereafter, the issues were framed. The case was fixed for evidence and no evidence was adduced. However, when the case was fixed for 24.4.2009 for evidence of the plaintiffs being last opportunity, on that date an application under [SECTION] read with [SECTION] of the [ACT] (in short, "the Code") was filed. The trial court vide order dated 14.6.2011 dismissed the said application. Hence the present revision petition.
3. I have heard learned counsel for the petitioner and gone through the record with his assistance.
4. Learned counsel for the petitioner submitted that the plaintiffs had sought to incorporate an amendment in the plaint whereby it was proposed to amend that the defendant had made changes in the property in dispute after the filing of the suit. It was sought to be incorporated that the defendant had illegally encroached upon land measuring 3'x21' of residential portion of the plaintiffs by encroaching a portion of the street for constructing a room during the pendency of the suit. Relying upon judgments of the Apex Court in [PRECEDENT], [PRECEDENT] and [PRECEDENT], he submitted that delay could not have been a ground for rejection of the amendment application as the amendment sought was germane to the just decision of the case.
5. After hearing counsel for the petitioner, I do not find any merit in the revision petition. The trial court had rejected the application for amendment of plaint with the observations that the plaintiffs after availing several opportunities including last opportunity to lead evidence had filed the application which could not be termed to be bonafide. It was also noticed that the amendment sought would change the nature of controversy between the parties. The trial Court while rejecting the application of the plaintiff- petitioner had noticed as under:-
"I have given thoughtful consideration on the arguments put forward by learned counsel for the parties and on appraisal of entire case file, it is apparent on the face of record that trial in this case was commenced on 8.5.2008 as and when case was fixed for plaintiff evidence. However, on that date, plaintiff did not examine the witness and sought a date and case was adjourned to 10.6.2008 but on 6.6.2008, file was taken up and case was adjourned to 11.8.2008 for plaintiff evidence. On that date, plaintiff did not examine any witness and sought a date and case was adjourned to 13.10.2008 for plaintiff evidence. On 10.10.2008 file was taken up and case was adjourned to 5.11.2008. Again on that date, no witness was examined and on the request of plaintiff counsel, case was adjourned to 4.12.2008. On 4.12.2008, no witness was examined and adjournment sought for compromise, but on 20.12.2008, the parties could not arrive at a compromise and case was adjourned to 16.2.2009 for evidence of plaintiff. Again plaintiff did not examine any witness and case was adjourned to 24.4.2009 for plaintiff evidence with last opportunity. However, on that date, an application under [SECTION] [ACT] read with [SECTION] [ACT] was filed by plaintiff. It is worth to mention here that an interim application under [SECTION] and [SECTION] [ACT] was filed which was dismissed vide detail order dated 5.12.2007 passed by Shri [ENTITY], then learned Additional Civil Judge (Senior Division), Kurukshetra. This fact itself show that plaintiff has been opting pick and choose method by invoking liberal process of law."
6. The Court in order to test the bonafides of the petitioner in seeking amendment of the plaint at belated stage sought prima facie material to justify taking of the plea as claimed by way of amendment. Learned counsel for the petitioner was unable to demonstrate with reference to some prima facie material that the encroachment as alleged had been made by the defendant during the pendency of the suit.
7. Referring to the judgments relied upon by learned counsel for the petitioner, it may be noticed that the same do not advance the case of the petitioner as the petitioner has not been able to satisfy the Court regarding bonafides of the plaintiffs in filing the application for amendment at the belated stage.
8. In view of the above, there is no merit in this revision petition and the same is dismissed.
October 12, 2011 ([ENTITY]) 'gs' ` Judge1