1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 7370 of 2009. Date of Decision: 20.4.2011 *** Ajmero .. Petitioner VS. Nasib Kaur & Ors. .. Respondents CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. V.K. Bali, Advocate for the petitioner. Mr. Deepak Sharma, Advocate for the respondents. *** ARVIND KUMAR, J. The present petitioner is the plaintiff in the suit for declaration and joint possession of the properties left by her deceased father Sh. Sadhu Singh. In the said suit she arrayed her other sisters, their children and mother Narati Devi as defendants. A challenge was also laid therein to the Will dated 16.12.1982 alleged to have been executed by Sadhu Singh in favour of defendant No.2 Rameshwar Dass, the son of her sister namely Nasib Kaur. When the parties were leading evidence in the case, she filed an application under Order 6 Rule 17 CPC seeking amendment in the plaint on the ground that on 28.11.2008 defendant No.2 forcibly took the possession of the suit property from her and hence, a prayer with regard to recovery of possession is to be made in the suit. That apart, it is averred that description of land has inadvertently been given wrong in the plaint and certain numbers have been left and sought to incorporate/ correct the particulars of the land. A further prayer was made to amend the plaint to the effect that after the death of her mother Smt. Narati Devi, who died during pendency of the suit, her share be apportioned amongst the legal heirs equally and the claim made by defendant No.2 who claimed the inheritance of Smt. Narati Devi on the basis of some forged and fabricated Will dated 18.9.1998, is liable to be rejected. The prayer made by the petitioner-plaintiff were opposed by the 2 defendants, except defendant No.5. According to them the application has been filed by the plaintiff only to cover up the lacunae; at a belated stage; allowing of which altogether change the nature of the suit and amounts to de-novo trial. After the contest the application has been dismissed, inter alia, on the ground that after commencement of trial the amendment cannot be permitted to the plaintiff, especially when she failed to show that despite due diligence she could not raise the matter before commencement of trial, which otherwise were well within her knowledge. Dis-satisfied with the same present revision petition has been filed by the plaintiff. Order VI Rule 17 CPC deals with the amendment of pleadings and provides that the Court may at any stage of the proceedings allow either party to alter or amend pleadings in such a 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. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under:- “Provided that no application for amendment shall 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.” From the above, it is clear that the Court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of trial. The petitioner, as noticed above, wants to make three amendments in the plaint. Firstly, her prayer is with regard to recovery of possession which defendant No.2 took from her during pendency of the suit. It is evident from the records that the consistent stand of the defendants is 3 that it is defendant No.2 who is owner and in possession of the suit property and not the plaintiff. The suit was filed in the year 1998 and when it comes near to conclusion, the plaintiff sought to incorporate the plea of recovery of possession. Allowing such a prayer at this juncture would certainly amounts to introduction a new case and will altogether change the nature of the suit from declaration and joint possession to that of recovery of possession, thereby causing prejudice to the defendants. In Usha Balashaheb Swami and Others v. Kiran Appaso Swami and Others 2007 AIR SCW 2545 the Hon'ble Apex Court observed that a prayer for amendment of the plaint stand on different footing. The relevant observations are set out as under : "19. ..a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.” Hence, the plaintiff cannot be permitted to carry out the amendment sought regarding recovery of possession. So far as amendment with regard to description of land is concerned, it cannot be believed that for more than a decade the plaintiff was not aware of the fact that the description of the land given by her in the plaint is wrong, despite being objected by the defendants in their written statement. The relevant revenue documents, on the basis of which the suit was filed, were in the possession of the plaintiff, but during all these years no attempt was made by her to get the description of the land rectified, if at all any mistake had occurred in mentioning of the same. Coming to the third plea of the plaintiff regarding challenge to 4 the Will dated 18.9.1998, it is evident from the records that earlier the plaintiff was permitted to amend her plaint and consequent thereto the defendants also filed their amended written statement on 18.9.2008 wherein the factum of Will dated 18.9.1998 was mentioned. But despite that the plaintiff kept on pursuing the suit, without seeking amendment at the plaint of time when the aforesaid fact came into her knowledge. That apart she even had not file any replication to the assertions made therein. Even when she filed a civil revision No. 665 of 2009 against the order of rejection of her prayer of withdrawal of the suit, then also she did not bother to make the mention of the aforesaid fact therein. From the sequence of events. it cannot be said that despite exercise of due diligence, the petitioner could not get the aforesaid fact incorporated in her plaint by way of an amendment, at an earlier stage. She kept the proceeding in the suit going on and when the case was at the stage of defendants' evidence, she filed the impugned application. Considering these aspects of the matter, the learned Court below rightly declined the prayer of the petitioner for amendment in the plaint. The Court below has passed a well reasons order, which warrants no interference by this Court. Dismissed. (ARVIND KUMAR) JUDGE April 20,2011 Jiten