Civil Revision No. 7184 of 2011 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Revision No. 7184 of 2011 (O&M) Date of decision. 23.11.2011 Sarwan Ram .... Petitioner Versus Rattan Singh and others ...... Respondents CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.R.D. Bawa, Advocate for the petitioner. **** Vijender Singh Malik, J. CM No.27962-CII of 2011 Application is allowed. The petitioner is exempted from filing certified copies of Annexures P-1 to P-8. CR No.7184 of 2011 The order dated 16.08.2011 passed by learned Additional Civil Judge (Senior Division), Garhshankar allowing application for amendment of the plaint under Order 6 Rule 17 CPC has been challenged by way of this revision petition, brought under the provisions of Article 227 of the Constitution of India by Sarwan Ram, defendant. Civil Revision No. 7184 of 2011 --2-- The plaintiffs Rattan Singh and others had filed a suit for permanent injunction restraining the defendants from obstructing the flow of rainy/daily used water of the houses of the plaintiffs as well as others situated on the western side of the pucca brick paved street constructed by the Gram Panchayat of village Pahlewal shown red with letters 'ABCD' in the site plan annexed with the plaint by way of raising any construction of wall at point 'AB' or by raising level of the land to North of the same. In the said suit, the plaintiffs have prayed for permission to add khasra number of the land underneath the houses of the parties and the street marked 'ABCD' as no. 77, Khata No.146, Khatauni No. 281 to 288 as per the jamabandi for the year 2005-06. The said application is opposed by the defendants claiming that the same has been filed at a belated stage. They have also claimed that earlier application on the same grounds was dismissed vide order dated 30.05.2011. According to them, the property is sufficiently described for the purpose of the suit in the site plan and, therefore, the amendment sought is not necessary to be incorporated. Hearing learned counsel for the parties, learned trial court allowed the application vide order dated 16.08.2011 subject to payment of Rs.5000/- as costs. Aggrieved by the said order, Sarwan Ram, defendant has brought this revision petition. Civil Revision No. 7184 of 2011 --3-- I have heard Shri R.D. Bawa, learned counsel for the petitioner and have gone through the record. Learned counsel for the petitioner has submitted that when earlier application for amendment of the plaint on the same ground had been declined, there was neither any right with the plaintiff to have brought the second application for the same reason, nor the court was justified in allowing the application. He has further submitted that after the introduction of the proviso to Order 6 Rule 17 CPC by way of Amending Act no.22 of 2002 w.e.f. 01.07.2002, the court can allow amendment to the pleadings only as per the provisions of this proviso if the trial has once begun. According to him, there is no dispute in the case that the trial in the case has already begun. Learned counsel for the petitioner has further submitted that as per the aforesaid proviso, once the trial has begun, the amendment can only be allowed 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. According to him, in addition to the reasons for which amendment to the pleadings could be allowed before the commencement of trial, the party seeking the amendment would require to prove that inspite of due diligence, he could raise the matter before commencement of the trial, if the amendment is sought after the commencement of the trial. He has placed reliance on two decisions of Hon'ble Supreme Court of India in support of his submissions in Civil Revision No. 7184 of 2011 --4-- Vidyabai and others v. Padmalatha and another 2009(1) RCR (Civil) 763 and Ajendraprasadji N. Pande and another v. Swami Keshavprakeshdasji N. and others AIR 2007 Supreme Court 806. The earlier application had not been for adding description to the suit land by way of khasra number. In the said application, amendment was sought to incorporate the plea to the effect that plaintiff and defendant no.1 purchased their plots of land vide joint sale deed dated 30.101963. As this fact was admitted by the defendants in the written statement. The application was dismissed as there was no necessity to incorporate the said plea in the plaint. By way of the present application, the plaintiffs want to describe the suit property by khasra no.77. It is by way of adding further description to the suit land and would not cause any prejudice to the defendant. It would rather help the court in identifying the property and would save the parties from further complications. In the reply filed to the application, Sarwan Ram, defendant has not disputed the identity of the suit property rather it has been pleaded that there is no dispute of khasra number or identity of any property in the suit. In view of this reply of Sarwan Ram, defendant, it can very well be said that the plaintiffs do not want to alter any material averments of the plaint or change the cause of action, which may prejudice the opposite party. However, the proviso as laid down in Vidyabai and others' case (supra) lays a complete bar to the amendment of the pleadings if the same is sought after commencement of the trial and the party seeking the same has nothing to prove or even Civil Revision No. 7184 of 2011 --5-- aver that the said plea could not be raised before commencement of the trial inspite of due diligence. So in view of the ratio of the aforesaid decisions, no amendment can be allowed to the pleadings if the same is sought after commencement of the trial where the party fails to satisfy the court that it could not raise the said plea inspite of due diligence. However, Hon'ble Supreme Court of India has laid down certain factors to be taken into consideration while dealing with application for amendment in Revajeetu Builders & Developers v. Narayanaswamy and sons and others, 2010(1) Civil Court Cases 001 (SC), the same are as under:- “67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1)Whether the amendment sought is imperative for proper and effective adjudication of the case? (2)Whether the application for amendment is bona fide, or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5)Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case ? And (6) As a general rule, the court should decline amendments, if a fresh suit on the amended claims would be barred by limitation on the date of application.” Civil Revision No. 7184 of 2011 --6-- In yet an another case reported as The National Textile Corporation Ltd. v. Nareshkumar Badrikumar Jagad and others 2011 (2) RCR (Rent) 293, it has been held that a new ground raising a pure legal issue for which no inquiry/proof is required can be permitted to be raised by the court at any stage of the proceedings. Since the matter sought to be raised by the plaintiff is just by way of precisely describing the suit land by adding khasra number thereof to the plaint which neither requires any inquiry nor would cause any prejudice to the other side, the said amendment could be allowed in view of the same. In these circumstances, the proviso to Order 6 Rule 17 CPC does not provide a bar to the amendment sought by the plaintiff in this case. I find no illegality in the impugned order. Consequently the revision petition fails and is dismissed. 23.11.2011 (VIJENDER SINGH MALIK) dinesh JUDGE