Civil Revision No.5675 of 2011 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5675 of 2011 Date of decision: 16.9.2011 Sawarnjit Kaur and others ...Petitioners Versus Ranjit Singh and others ...Respondents CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. M.J.S.Bedi, Advocate for the petitioners. AJAY KUMAR MITTAL, J. The plaintiffs-petitioners filed this revision petition against the order of the Trial Court dated 16.8.2011 whereby application filed by them under Order 6 Rule 17 of the Code of Civil Procedure has been declined. 2. Briefly the facts as narrated in the petition are that plaintiffs- petitioners have filed a civil suit against the respondents-defendants seeking declaration to the effect that the registered sale deed dated 1.12.2005 executed by respondents-defendant no.1, 3 to 6 in favour of respondent-defendant no.2 is null and void and is liable to be set aside and further sought the relief of permanent injunction restraining the respondents-defendants from alienating the suit property and interfering in their peaceful possession of the suit property. After filing of the suit, it came to the notice of the petitioners-plaintiffs that there was technical defect in the plaint because of mis-communication between the counsel and the petitioner-plaintiff No.1, who had filed the suit as next friend of minor petitioners-plaintiffs No.2 and 3. Therefore, petitioners-plaintiffs Civil Revision No.5675 of 2011 -2- **** made a statement before the Trial Court for withdrawal of the suit with liberty to file fresh one, which was not accepted by the Trial Court on the ground that interest of the minor plaintiffs was involved. Thereafter, plaintiffs-petitioners preferred an application to withdraw the suit with liberty to file fresh one after removing the defect which was declined by the Trial Court on the ground that if there was any technical defect in the suit, it can be cured by way of amendment. Accordingly, petitioners moved application for amendment of the plaint which was dismissed by the trial Court vide impugned order dated 16.8.2011. Hence the present revision petition. 3. Learned counsel for the plaintiffs-petitioners submitted that the suit property was Hindu undivided coparcenary property in which plaintiffs and the defendants were the coparceners whereas it had inadvertently been described to be joint property. The said fact having come to the notice at the initial stage was sought to be amended by way of present application. He further submitted that when this fact came to the notice of the plaintiffs-petitioners they filed an application under Order 23 Rule 1 read with Section 151 of the Code of Civil Procedure for withdrawal of the suit with permission to file fresh one on the same cause of action wherein it was observed that if there was any defect, the same could be rectified by way of amendment. In such a situation, the dismissal of the application for amendment was unjustified. 4. After hearing the learned counsel for the petitioners, I do not find any merit in the revision petition. The suit was originally filed on 8.10.2007 claiming to be co-sharers in the joint Hindu property on the basis of oral family partition between the parties, whereas by the amendment the subject of the suit was being changed completely as it was sought to be Civil Revision No.5675 of 2011 -3- **** pleaded that it was still joint Hindu family coparcenary property. Nature of the suit property depicted in the earlier plaint and also the complete tenor of the suit would change by way of amendment. The Trial Court while declining the application of the plaintiffs had recorded as under:- “Perusal of the file shows that the present case was filed by the plaintiffs for the relief of declaration that plaintiffs are co- sharers in the suit property and sale deed bearing No.4037 dated 1.12.2005 is illegal, null and void and for the relief of permanent injunction restraining the defendants from further alienating the suit property and dispossession of the plaintiffs over the same. In the body of the plaint, the plaintiffs have submitted the property to be joint Hindu family coparcenary property and also submitted that property has been partitioned between the parties through oral family partition but now through the application in hand, the plaintiffs wants to take entire new plea that the property is still joint Hindu family coparcenary property for which defendant no.1 has no right to alienate the same except for legal necessity and the act of good management. Therefore, the said pleas sought to be incorporated in the plaint through the present application are entirely new and will consequently change the nature of the suit as earlier in the plaint, plaintiffs presented themselves to be co-sharers in the property which as per submissions in the plaint, has been partitioned through oral family partition but in the amendment they have submitted the property to be joint Hindu family coparcenary property which has been alienated by the defendant without any legal necessity. In this regard in Civil Revision No.5675 of 2011 -4- **** M/s Hindustan Petroleum Corporation Ltd. Vs. M/s Kaintal Auto Enterprises & Anr. 2010(1) Civil Court Cases 070 (P&H) the Hon'ble High Court held that by way of amendment new cause of action cannot be substituted for the old one. Further plaintiffs have no where submitted that said submissions as sought to be incorporated in the plaint through present amendment were not in the knowledge of the plaintiffs at the time of filing of the suit. Further more, vide said amendment plaintiffs also claimed the relief of the possession over their share in the suit property whereas in the original plaint they submitted to be in possession of their share in the suit property being co-sharers and sought the relief of permanent injunction against the forcible dispossession. Further the present suit was filed on 8.10.2007 and I am of the opinion that application in hand is filed at a very belated stage just to delay the proceeding of the present suit. Hence the application in hand is dismissed.” 5. No illegality or perversity could be pointed out in the order dated 16.8.2011 which may warrant interference by this Court. 6. In view of above, finding no merit in the revision petition, the same is dismissed. September 16, 2011 (Ajay Kumar Mittal) Pka Judge