IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 512 of 2008 & CMPMO No. 590 of 2008 Date of decision: 27.10.2010 In both the petitions. Pawan Gupta Petitioner. Versus Manjulika Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Rahul Mahajan, Advocate. For the respondent: Mr. Neel Kamal Sood, Advocate. Deepak Gupta, J. (oral) 1. These two petitions are being disposed of by common judgement since they arise out of the same suit and are between the same parties. CMPMO No.512 of 2008: 2. The petitioner here-in filed a suit in the trial Court praying that a decree for mandatory injunction be passed directing the respondent (here-in-after referred to as the defendant) to execute a sale deed in his favour with respect to the suit property on the allegation that the parties 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes. 2 had entered into an agreement on 31.12.2001 whereby the defendant had agreed to sell the suit property to the plaintiff. 3. This suit was contested by the defendant on various grounds including the ground that such a suit was not maintainable. Thereafter, the plaintiff filed an application for amendment of the suit in which basically two amendments were prayed; firstly, the value of the suit for purposes of court fees and jurisdiction was changed and secondly an averment was made that the plaintiff was always ready and willing to execute the sale deed and therefore, prayer clause was also sought to be amended and a decree for specific performance directing the defendant to execute sale deed in favour of the plaintiff qua the suit property was also prayed for. This application was rejected on the ground that the trial had commenced and such relief was available to the petitioner before commencement of the trial and there was no sufficient explanation. 4. There is no manner of doubt that the trial had commenced but from the perusal of the plaint I find 3 that all the facts had been pleaded. What is to be value of the suit for the purpose of court fees and jurisdiction and what is to be prayer clauses are legal issues which a counsel and not the party has to frame. Therefore, it cannot be said that the party was not diligent. 5. In this view of the matter, I am of the considered view that the amendment in this case which does not in any manner change the nature of the suit should have been allowed. However, it is made clear that this amendment will not relate back to the date of the filing of the suit and the amendments shall be deemed to have been come into the plaint only from the date when the application for amendment was filed in the trial Court. Therefore, it will be open to the defendant to take a plea that the suit as on the date when the application for amendment was filed was time bared. Such contention will have to be decided on its own merit. With these observations, the petition is allowed, subject to payment of costs of Rs.5,000/- which must be paid on the date next fixed for the appearance of the parties before the 4 learned trial Court failing which the present petition shall be deemed to have been dismissed. CMPMO No.590 of 2008: 1. By means of this petition, the petitioner has challenged the order dated 3.11.2008 whereby the learned trial Court had closed the evidence of the plaintiff. The only explanation given is that earlier petition being CMPMO No.512 of 2008 was pending in this Court and therefore, the petitioner did not deem it proper to produce his evidence and filed an application that since the matter is pending in this Court the proceedings should be stayed. The learned trial Court was fully justified in holding that since there was no stay order granted by the High Court it could not have stayed the proceedings. 2. However, keeping in view the fact that I have allowed the amendment, I feel that the petitioner may be granted an opportunity to lead evidence and therefore, the order of the learned trial Court is set-aside and the petitioner is granted fresh opportunity to lead evidence. This petition is allowed subject to payment of costs of Rs.2,000/- to be paid on the next date. In case costs are not 5 paid before the date so fixed, the present petition shall be deemed to have been dismissed. Both the parties are directed to appear before the learned trial Court on 2nd December, 2010. 27th October, 2010 (Deepak Gupta), J. ™