Civil Revision No.3072 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.3072 of 2010(O&M) Date of Decision: March 10, 2011 Mangat Singh .....Petitioner v. Diwan Singh and another .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.S.P.Soi, Advocate for the petitioner. Mr.Deepak Arora, Advocate for respondent no.1. ..... RAM CHAND GUPTA, J. C.M.No.6657-CII of 2011 Requests for placing on record correct copy of Annexure P2. The same is taken on record subject to all just exceptions. Application stands disposed of accordingly. Civil Revision No.3072 of 2010 The present revision petition has been filed under Article 227 of the Constitution of India for quashing of order dated 23.4.2010, passed by learned Additional Civil Judge, Senior Division, Nakodar, vide which learned trial Court had declined the application for amendment of the plaint filed by petitioner-plaintiff. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court. Facts relevant for the decision of present revision petition are that a suit for possession by way of specific performance of agreement to sell dated 27.12.2007 in respect of land, duly described in the heading of the Civil Revision No.3072 of 2010(O&M) -2- plaint, was filed by petitioner-plaintiff against respondent no.1-defendant no.1 on the brief allegations that respondent no.1-defendant no.1 entered into an agreement to sell the land in dispute with him on 27.12.2007 for a consideration of `4,50,000/- and received `3,00,000/- as earnest money at the time of execution of agreement to sell and further agreed to execute and register sale deed on 29.7.2008 on receipt of balance sale consideration and, however, as he was always ready to perform his part of the contract, respondent-defendant no.1 failed to comply with terms and conditions of the agreement . Hence, this suit. Suit was contested by respondent no.1-defendant no.1 denying the very execution of the agreement and receipt of earnest money of `3,00,000/-. Rather the plea has been taken that the plaintiff and his son Kakka Singh are travel agents and they had cheated so many persons under the pretext of sending them to abroad. Further plea has been taken that plaintiff and his son Kakka Singh has received `3,00,000/- from defendant in order to send him to foreign country, i.e., Italy, and that in order to arrange the required documents, they also obtained thumb impressions of defendant on some blank papers and when he demanded the money back, plaintiff converted the said blank papers into the impugned agreement. Issues were framed by learned trial Court and the case was fixed for evidence of the parties. However, plaintiff failed to conclude his evidence after availing several opportunities and filed the present application for amendment of the plaint under Order VI Rule 17 of the Code of Civil Procedure (hereinafter to be referred as `the Code'), which was contested by respondent no.1-defendant no.1. The application was dismissed by learned trial Court by observing as under:- “ Arguments of counsel for the parties on application for amendment of plaint, filed by the plaintiff, heard. Vide instant application the plaintiff has prayed for incorporation of one fact in the plaint that he is already in possession of disputed property and the instant suit filed for possession may be treated as suit for specific performance of agreement for sale dated 27.12.2007. The perusal of record, particularly, plaint shows that earlier plaintiff filed suit for possession by way of specific performance of agreement Civil Revision No.3072 of 2010(O&M) -3- dated 27.12.2007. Hence, plaintiff in a way admitted one fact that defendant is in possession of disputed property. Now, by way of present application, he wants to withdraw said admission, which cannot be allowed because if allowed, it would cause prejudice to the defendants. Moreover, the instant application has been filed at belated stage as issues were framed in this case on 12.12.2008 and thereafter, plaintiff did not bring even a single witness to prove his case despite the fact that he has availed sufficient opportunities in this regard. On the basis of above discussion, I do not find any merit in the application in hand and hence ordered to be dismissed. Now case stands adjourned to 18.5.2010 for evidence of plaintiff subject to payment of cost `100/-. It shall be the final opportunity.” It has been contended by learned counsel for the petitioner- plaintiff that as per recital in the agreement to sell, possession was handed over to petitioner-plaintiff and that relief for possession has been claimed by counsel for the petitioner-plaintiff inadvertently without going through the contents of the agreement. It is further contended that in fact the petitioner-plaintiff is in possession of the property in dispute and hence, learned trial Court has committed illegality in declining the prayer of the petitioner-plaintiff for deleting relief of possession. He has also placed reliance upon a judgment rendered by a coordinate Bench of this Court in Ramanand v. Sedhu and others, 2010(2) RCR (Civil) 31. On the other hand, it has been contended by learned counsel for respondent no.1 that the impugned agreement is a result of fraud and the same was not executed by him in favour of petitioner-plaintiff and that possession of the property in dispute was never delivered to petitioner- plaintiff and that rather he has been continuing in possession of the property in dispute. It is further contended that respondent no.1-defendant no.1 also filed a suit for permanent injunction restraining present petitioner- plaintiff from interfering in his possession alongwith an application under Order 39 Rules 1 and 2 of the Code for ad interim injunction order. It is further contended that learned trial Court as well as learned first appellate Civil Revision No.3072 of 2010(O&M) -4- Court granted injunction in his favour and however, in revision filed by present petitioner-plaintiff, parties were ordered to maintain status quo qua possession. It is further contended that after interim order regarding possession was passed in favour of respondent-defendant no.1, the present application was filed by petitioner-plaintiff with an ulterior motive to withdraw his own admission in the present suit that defendant is in possession of the same as he has claimed relief of possession. Hence, it is contended that application for seeking amendment is not a bona fide one and the same is not necessary for proper adjudication of the controversy in dispute between the parties. It is pertinent to reproduce the amended provision of Order VI Rule 17 of the Code, which reads as under:- “17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such 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: 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.” Law has been well settled by Hon'ble Apex Court in Vidyabai and others v. Padmalatha and another, 2009(1) RCR (Civil) 763 that no application for amendment is to be allowed after commencement of trial, unless the Court comes to the conclusion that in spite of due diligence, the parties could not have raised the matter before commencement of trial. In the present case, trial has already commenced. Coordinate Bench of this Court in Ramanand's case (supra), after relying upon another judgment rendered by Hon'ble Apex Court in Ajendraprasadji N.Pande v. Swami Keshvprakeshdasji N., 2007(1) RCR (Civil) 481, has observed as under:- “10. A prayer for amendment of pleadings made after the commencement of a trial, shall ordinarily be declined. Where, however, the applicant establishes that despite the exercise of Civil Revision No.3072 of 2010(O&M) -5- due diligence, he could not raise the pleadings sought to be pleaded by way of amendment, before the commencement of a trial, a court would be justified in allowing such an amendment. The power, therefore, to allow amendment of pleadings, even after the commencement of the trial, subsists, but with a caveat that the party praying for amendment must establish that despite the exercise of due diligence, the pleadings sought to be pleaded by way of an amendment could not be raised before the trial commenced. A court, therefore, may where it is of the opinion that the amendment is necessary for the purpose of determining the real controversy and if the applicant satisfies the court that despite the exercise of due diligence, he could not raise the pleadings before the trial commenced, allow such a prayer, even after the commencement of the trial.” There is no dispute in the aforesaid legal proposition. Amendment after commencement of trial shall ordinarily be declined and, however, in exceptional cases, the same can be allowed, if the same is necessary for determining the real question in controversy. However, in my view the amendment sought by petitioner- plaintiff is not at all necessary for deciding the real controversy in the present suit. The controversy is as to whether the impugned agreement was ever executed by respondent no.1-defendant no.1 in favour of petitioner- plaintiff. The factum regarding possession is also subject matter of another civil suit pending between the parties. Hence, there is force in the argument of learned counsel for the respondent no.1-defendant no.1 that the application filed by petitioner- plaintiff for amendment of plaint cannot be said to be a bona fide one. Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or Civil Revision No.3072 of 2010(O&M) -6- law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 10.3.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.