Civil Revision No. 5976 of 2011 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5976 of 2011 (O&M) Date of Decision: September 28th,2011 M/s Racoo Enterprises. ..... Petitioner Versus Vivek Kapila and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. Sunil Chadha, Advocate, for the petitioner. VIJENDER SINGH MALIK, J. This is a revision petition brought under the provisions of Article 227 of the Constitution of India by defendant No.1 for setting aside the order dated 6.9.2011 (Annexure P/4) passed by Additional Civil Judge (Senior Division), Malerkotla, vide which the application filed by respondent no.1/plaintiff for amendment of the plaint has been allowed. The suit in which the application for amendment of the plaint has been allowed, has been brought for specific performance of the agreement of sale dated 14.9.2004 in which it is claimed that the land measuring 12 bighas 15 biswas was agreed to be sold for Civil Revision No. 5976 of 2011 2 .. Rs.40,55,000/- in favour of the plaintiff, out of which a sum of Rs.10,00,000/- had been paid. The other terms of the agreement of sale are not relevant for the purpose of this revision petition. Claiming that the agreement of sale had been scribed on 15.9.2004 on a stamp paper purchased on that day but inadvertently the date of execution of the agreement was typed thereon 14.9.2004, the plaintiff sought amendment of the plaint by substituting 15.9.2004 as the date of agreement in place of 14.9.2004 originally mentioned. The mistake is claimed to be typographic error and the amendments, which were required in the body of the plaint, consequent upon the substitution of the date, have been mentioned in the application. The application has been opposed by Rakesh Kumar for defendant No.1 – petitioner. The application is claimed to be not legally maintainable and misconceived. It is also claimed that the same cannot be allowed after commencement of the trial. It is further mentioned that the plaintiff has not specified the parawise amendment and therefore, the application is defective. The amendment is also claimed to be causing prejudice to the defendant. It is also claimed that the proposed amendment would date back to the institution of the suit which has now become time barred and rights that have accrued to the defendant, would be taken away from him. The amendment sought is denied to be typographic error. It is averred that it is evident from the record that Civil Revision No. 5976 of 2011 3 .. the agreement was written on 14.9.2004. It is also averred that if the stamp paper of the agreement was purchased on 15.9.2004, agreement could not be executed on 14.9.2004 and, therefore, it is a case of clear forgery. The application is also claimed to be bad for the plaintiff's taking inconsistent pleas in the same. It is averred that the proposed amendment, if allowed, would introduce a new cause of action, which cannot be allowed. The averments made in parawise reply relate to the merits of the claim and are not necessary to be reproduced here. Hearing learned counsel for the parties, learned trial court allowed the application subject to payment of Rs.3,000/- as costs vide the impugned order. Dissatisfied with the said order, defendant No.1 has brought this revision petition. I have heard Shri Sunil Chadha, learned counsel for the petitioner and have gone through the record. Learned counsel for the petitioner has contended that learned trial Court did not take into account the basic provisions of proviso to Order 6 Rule 17 CPC, under which the amendment is not to be allowed, once the trial has commenced unless the court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of the trial. According to him, the suit was filed on 20.2.2006 and the application for amendment has been filed on 22.9.2010. He has Civil Revision No. 5976 of 2011 4 .. submitted that if this amendment is allowed, it would date back to the filing of the suit. According to him, the claim for specific performance on the basis of the agreement of sale dated 15.9.2004 had become time barred on the date of application and, therefore, this amendment could not be allowed. He has submitted that the court was required to consider if the suit filed on the date of application for amendment would have been within limitation. According to him, if the court came to the conclusion that on the date of filing of the application, the suit filed afresh would have been barred by limitation, the amendment should have been refused. Learned counsel for the petitioner took me through the impugned order and has submitted that the learned trial court has allowed this application for the only reason that the High Court has granted permission to the plaintiff to lead secondary evidence regarding the agreement of sale. According to him, this aspect has no connection with the application for amendment and this aspect alone cannot be held sufficient to prove that the amendment sought will not cause any prejudice to the respondents/defendants. Learned counsel for the petitioner has placed on the file a photocopy of the agreement of sale in question. He has submitted that learned trial court has not even taken note of the objections raised by defendant No.1 in its reply to the application for amendment. According to him, learned trial court should at least Civil Revision No. 5976 of 2011 5 .. have dealt with those objections before allowing the application. It is a case where the defendants have taken the plea that the agreement was cancelled subsequently after execution of sale deed by Smt. Radha Gupta, respondent No.2, regarding half of the land agreed to be sold. Had this agreement been a forgery, which is plea of the petitioner for the reason that the stamp paper on which agreement dated 14.9.2004 is scribed, was purchased on 15.9.2004, there was no occasion for the defendants to have honoured the agreement by selling half of the land and by agreeing to cancel the remaining half. The plea taken by the defendants that the agreement is forged and that of the settlement are by themselves contradictory. The plaintiff does not want to change the cause of action. The agreement is the same. What the plaintiff seeks to amend is only the date of agreement. It is claimed that while drafting the agreement, due to a typographic mistake, the date on the agreement was mentioned as 14.9.2004 while it was entered into on 15.9.2004, the date on which the stamp paper for it was purchased. So, neither the plaintiff has sought to change date on the agreement, which he is least competent to do so, nor he has tried to make out a case based on a new cause of action. He has just tried to amend the date of agreement mentioned in the plaint, which he claims to be mentioned as 14.9.2004 on account of typographic error. Civil Revision No. 5976 of 2011 6 .. Correction of such a typographic error would not mean that a new claim is set-up after the period of limitation and as the same has barred, the amendment could not be allowed. The decision in South Konkan Distilleries & Anr. Vs. Prabhakar Gajanan Naik & Ors 2008 (4) RCR (Civil) 513, cited before me by learned counsel for the petitioner is a case where amendment was sought in the written statement claiming damages after 13-1/2 years. The period of limitation to claim damages or make a counter claim had already expired and, therefore, the amendment was held to be barred by limitation. This is not the case before me. Similar was the case of Sunder Lal and another Vs. Anjuman Amdad Bahmi Co-operative Society, Khzri 2010 (5) R.C.R. (Civil) 458. For the same reasons, the ratio of that decision does not stand attracted to the facts of this case. The decision of Hon`ble Supreme Court of India in Revajeetu Builders & Developers Vs. Narayanaswamy & Sons and others 2010(1) RCR (Civil) 27 lays down law regarding amendments and I find none of the principles laid down therein to bar the amendment sought in this case. The amendment sought has although been applied for after commencement of the trial, yet it is a case where the proviso to Order 6 Rule 17 does not bar this amendment because the correction sought to be made is to a date mentioned wrongly in the original plaint on account of a typographic error and it can be said that the same could not have been raised despite due diligence Civil Revision No. 5976 of 2011 7 .. before commencement of the trial. Under these circumstances, I find no ground to interfere with the order challenged by way of this revision petition. The revision petition is, therefore, devoid of merit and is dismissed. (VIJENDER SINGH MALIK) JUDGE September 28th , 2011 som