CR No.7557 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.7557 of 2010 (O&M) Date of decision: 8.2.2011 Nar Singh ...Petitioner Versus Ram Diaya and others ...Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Deepak Sharma, Advocate for the petitioner None for respondent No.1. Mr.YS Turka, Advocate for respondent Nos. 2 to 7. *** Ram Chand Gupta, J.(Oral) The present revision petition has been filed under Article 227 of the Constitution of India for quashing order dated 30.7.2010, vide which an application filed by petitioner-plaintiff under Order 6 Rule 17 of the Code of Civil Procedure (for brevity 'the Code') for amendment of plaint, was dismissed by learned trial court. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial court. CR No.7557 of 2010 (O&M) 2 Brief facts relevant for the decision of the present revision petition are that petitioner-plaintiff filed a suit for declaration that he is owner in possession of the land-cum-house in dispute by way of oral family partition allegedly taken place between the parties during life time of their father. Written statement filed by defendant-respondents denying the alleged oral partition and a specific plea has been taken that after the death of their father namely Faggu Ram, his legal heirs inherited the property left by him in equal shares. Issues were framed by learned trial court vide order dated 14.12.2007 and the case was fixed for evidence of plaintiff for 11.1.2008. On 11.1.2008, no evidence of the plaintiff was present and the case was again adjourned for evidence of plaintiff for 5.2.2008, when an application under Section 151 of the Code was filed on behalf of the plaintiff-petitioner. After taking some dates, the present application under Order 6 Rule 17 of the Code was filed for amendment of plaint, which was contested by defendant-respondents and the same was dismissed by learned trial court vide impugned order dated 30.7.2010 by observing as under:- “7. In the instant case, plaintiff has filed a suit for declaration that he is owner and in possession of the land as detailed in the head note of the plaint. The case pertains to year 2006, and trial has already commenced as the case is at the stage of evidence of the plaintiff. The plaintiff had averred in para no.2 of the instant application that inadvertently he could not challenge the mutation no.1958 dated 11.6.2002, therefore, it appears CR No.7557 of 2010 (O&M) 3 that said sanction of mutation was very well in his knowledge at the time of filing of the present suit. Thus, it cannot be said that inspite of due diligence, the plaintiff could not have raised the matter before commencement of trial. Moreover, the plaintiff by way of the present amendment seek, declaration against the mutation no.1958 of 11.6.2002 which is hopelessly time barred and a valuable right has already occurred in favour of the defendants. 8. In view of above said discussion, finding no merits in the application in hand, the same is hereby dismissed.” It has been contended by learned counsel for the plaintiff- petitioner that the fact of sanctioning of mutation of the inheritance of the property in dispute, after death of his father was not in his knowledge earlier and that hence, learned trial court has committed illegality in dismissing his application for amendment of plaint. It is pertinent to reproduce Order 6 Rule 17 of the Code, which reads as under: “17.Amendment of pleadings.- The Court may at 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 CR No.7557 of 2010 (O&M) 4 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.” Hence, bare perusal of the aforesaid provision shows that after commencement of trial, application for amendment of plaint can be allowed by learned trial court only if the court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. In the present case as discussed above, trial has already been commenced after framing of issues and now case is fixed for evidence of the plaintiff. Father of the plaintiff-petitioner had died in the year 1998. The mutation of inheritance of the property left by father of the plaintiff- petitioner was sanctioned on 11.6.2002. The present suit was filed by the plaintiff-petitioner on 21.12.2006. Now by way of amendment of plaint, plaintiff- petitioner intend to challenge the said mutation of inheritance, which was sanctioned on 11.6.2002. Plaintiff-petitioner has failed to convince the trial court that the factum of sanctioning of mutation of inheritance of the property left by his father was not in his knowledge earlier when he filed the present suit. Hence, the plea has rightly been rejected by learned trial court. It cannot be said that sanctioning of mutation of inheritance of the property left by his father was not in the knowledge of the plaintiff-petitioner and that he could not raise the said matter before commencement of trial after due diligence. CR No.7557 of 2010 (O&M) 5 Law is well settled by Hon'ble Apex Court in Vidyabai and others vs. Padamalatha and another 2009(1) Recent Civil Reports (Civil), 763, that plaintiff has no right to file application for amendment of plaint after the commencement of trial, unless he is able to show that in spite of due diligence, he could not raise the matter before the commencement of trial. Moreover, law has been well settled in Surya Dev Rai vs. Ram Chander Rai and others 2004(1) RCR (Civil), 147 by Hon'ble Apex Court that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction of this Court. This court can interfere only when error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. In view of aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial court in passing the impugned order and that grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. There is no merit in the present revision petition. The same is, hereby, dismissed. February 8, 2011 (RAM CHAND GUPTA) gsv JUDGE