CR No. 4407 of 2066 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4407 of 2006 Date of Decision: 16.10.2006 Joginder Pal & Anr. ...Petitioners Vs. Krishan Bala ...Respondent CORAM Hon'ble Mr.Justice Vinod K.Sharma Present: Mr.Akshay Bhan and Mr.Vaneet Soni, Advocates, for the petitioners. Ms.Jagdeep Bains, Advocate, for the respondent. Vinod K.Sharma, J. (Oral) Present revision petition has been filed against the order dated 19.7.2006 passed by the learned Additional Civil Judge (Senior Division), Garshankar rejecting the application moved under Order 6 Rule 17 of the Code of Civil Procedure for the amendment of the written statement. The plaintiff-respondent had filed a suit for possession claiming to be the owner of the property in dispute. During the pendency of the suit it is alleged that the petitioners herein have exchanged certain land with Amar Chand co-owner of the property in dispute on 23.6.2004. CR No. 4407 of 2066 2 The claim of the applicant-petitioners was that in pursuance to the said exchange it has become necessary to amend the written statement by adding the following para after para No.2 of the written statement:- “ The defendants have come co sharer in Khasra No.661 by exchange of their land with Amar Chand. The defendants have given 2 kanals 4 marlas of land, out of khasra No.682 (2-7), 674 (3-14), 900/691 (9-10), 631 (3-17), situated in Village Rattanpur to Amar Chand and in exchange got 2 kanals 4 marlas of land in khasra no.660 (3-4), 661 (3-8) situated in village Rattanpur from Amar Chand on 23.6.04. The mutation No.335 of exchange has been entered and sanctioned in favour of defendants. The exchange has been duly acted upon and the defendants are in joint possession over khasra No.661. Thus, the defendants have become owners/co-sharers in khasra No.661 in dispute to the extent of 1/3rd share. The plaintiff has no right to get possession from the defendants, until and co sharers by metes and bounds. The suit is not maintainable.” In addition to the above petitioners sought to add the following para in para No.3: “ The defendants are in possession as co-sharers. There is no question of encroachment.” The said application was contested by the respondent-plaintiff on the plea that the defendants could not set up a new plea and the said exchange was fake document. The learned court below has rejected the application on the plea CR No. 4407 of 2066 3 that if the amendment is allowed it will give the petitioners an opportunity to set up a new plea inconsistent to the plea earlier taken by the applicants which could not be allowed. The second ground for rejection was that Amar Chand was not party to the civil suit with whom exchange was effected and accordingly, the court came to the conclusion that the amendment would take away the right already accrued to the plaintiff. I have considered the arguments raised by the learned counsel for the parties and find that the amendment sought was on account of subsequent events which happened during the pendency of the suit which entitled the petitioners to take a plea by way of amendment of the suit. Learned Court below was wrong in coming to the conclusion that the said amendment would take away the right which accrued to the plaintiff. The petitioners by way of amendment has not sought to withdraw any of the averments made in the written statement and have only added the subsequent events which have occurred after the filing of the written statement. Learned court was further wrong in coming to the conclusion merely because Amar Chand was not party to the suit therefore, it was not open to the petitioners to seek amendment. Whatever the effect of exchange and the right which may have accrued to the petitioners under the said exchange deed has to be decided by the court on merit. While allowing or disallowing the amendment it is not open to the court to go into the merits of the said amendment. The amendment sought was on account of subsequent events and therefore, it ought to have been allowed . Learned Court below could not have rejected the same by merely holding that the petitioners could file a suit against Amar Chand especially when there is no dispute inter se between Amar CR No. 4407 of 2066 4 Chand and the petitioners. Accordingly, this revision petition is allowed. The impugned order is set aside and the application under Order 6 Rule 17 of the Code is allowed. (Vinod K.Sharma) 16.10.2006 Judge rp