C.R.No.7222 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.7222 of 2011 Date of decision: 25.11.2011 Surinder Kaur ... Petitioner Versus Paramjit Kaur and others ... Respondents CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. Jagmohan Singh Chaudhary, Senior Advocate with Mr. F.S.Virk, Advocate for the petitioner. Ajay Kumar Mittal,J. 1. The plaintiff-petitioner has approached this Court impugning the order dated 5.10.2011, Annexure P.1 passed by the trial Court whereby an application filed under Order 6 Rule 17 of the Code of Civil Procedure (in short, “the Code”) for amendment of the plaint has been declined. 2. Brief facts may be noticed. The plaintiff-petitioner filed a suit for declaration to the effect that she is owner in possession of house No.B-XX-40/50 (2H), Sarabha Nagar, Ludhiana and for permanent injunction restraining the defendant-respondents from interfering in her possession. Surjit Singh, father of the petitioner was working as Inspector in National Sample Survey Organisation Planning Commission, Delhi. He was married to Dalip Kaur and out 1 C.R.No.7222 of 2011 of the wedlock, petitioner was born. Thereafter, Surjit Singh again married Balbir Kaur and three sons namely Surinderpal Singh, Bhupinderpal Singh and Joginderpal Singh were born. Balbir Kaur died on 27.4.1991 in America. The marriage between Surjit Singh and Dalip Kaur was never dissolved and was subsisting at the time of second marriage with Balbir Kaur. Surjit Singh was owner of house in dispute. He migrated to America in early Seventees and had been visiting India off and on. In 1983, there was a family arrangement between the petitioner, wife Dalip Kaur and sons Surinderpal Singh, Bhupinderpal Singh and Joginderpal Singh in which Surjit Singh disposed of the entire agricultural property belonging to him except one plot in Delhi. He paid the entire sale consideration to his sons i.e. predecessors of respondent nos. 1 to 3 and respondent No.4 and the property in dispute was given to the petitioner in lieu of her share in the estate of Surjit Singh so that she can maintain herself. 3. Respondent No.1 filed written statement whereas respondent nos. 2 to 4 were proceeded against ex parte. After the filing of the written statement, counsel for the petitioner discovered that respondent No.1 alleged that there was a sale deed of 1960 in favour of Surinderpal Singh, Bhupinderpal Singh and Joginderpal Singh. The petitioner told the counsel that at that time they were of very tender age and they had no source of income at all so the question of purchasing the property by them did not arise and the entire payment was made by Surjit Singh and the sale deed might be a paper transaction. Counsel for the petitioner assured the petitioner that he would plead all these facts. Thereafter an application under Order 1 Rule 10 of the Code by respondent Nos. 5 and 6 was filed for 2 C.R.No.7222 of 2011 impleading them as parties which was allowed by the court. The said respondents pleaded in the written statement that Surjit Singh was not the owner of the suit property and the same was owned by Surinderpal Singh etc. and was purchased by them in the year 1960. Counsel for the petitioner filed replication and assured that he had pleaded all these facts in the replication. Thereafter, the petitioner changed her counsel and disclosed all the facts to him who pointed out that these facts were not pleaded earlier. Accordingly, the petitioner filed an application for amendment of the plaint under Order 6 Rule 17 of the Code praying for addition of some averments in para 4 of the plaint. The trial court vide impugned order dismissed the said application. Hence this revision petition. 4. The plaintiff-petitioner sought amendment of the plaint whereunder it was sought to incorporate that alleged sale deed executed in 1960 in favour of Surinderpal Singh, Bhupinderpal Singh and Joginder Pal Singh, sons of Surjit Singh was only a benami paper transaction in their favour. It was further sought to incorporate that at that time they were of very tender age and had no source of income at all and the entire payment was made earlier and thereafter to the improvement Trust by Surjit Singh. The said application having been declined by the trial court, the petitioner has approached this court through the present revision petition. 5. The trial court while declining the application noticed that the said application had been filed after more than a decade of filing of the suit. Further, it was noticed that there was no whisper with regard to the benami transaction as has been sought to be added by way of amendment in the plaint. Moreover, there was no reference 3 C.R.No.7222 of 2011 to the sale deed in the original plaint vide which Surjit Singh had disposed of the property. Findings of the trial court in para 5 and 6 of the order read as under:- “After hearing both the counsel for the parties and going through the file with their able assistance this court has observed that plaintiff has filed the present suit for declaration that she is owner of the house as detailed in the head note of plaint as well as injunction that the defendant should not dispossess her from the property and she has taken the plea that her father had solemnized two marriages, she was born out of marriage of his father with Dalip Kaur and thereafter he again married with Balbir Kaur and had three sons. Said Surjit Singh father was owner of the house as described in the head note and in the year 1983 there was a family arrangement between plaintiff, Surjit Singh and his sons and his first wife Dalip Kaur in which Surjit Singh disposed of agricultural property belonging to him except the house in dispute. He had paid entire sale consideration to his sons i.e. predecessor of defendants No. 1 to 3. Now the plaintiff has moved present application in order to amend her plaint to the extent elaborating the plea taken by her in her plaint that the alleged sale deed 1960 in favour of sons of Surjit Singh was benami transaction, at that time they were of tender age and they had no source of income. 6. But this court has observed that plaintiff has first of all not brought on record the sale deed regarding which she has made reference in her application for amendment; and further the plea of plaintiff that her earlier counsel had not properly framed the plaint is not tenable. It is for the parties to explain the facts to the counsel and they have to plead the facts therein. But the present plea that the counsel had not mentioned the fact those stated by her is not tenable. Moreover, the plaintiff 4 C.R.No.7222 of 2011 now wants to elaborate the facts regarding the benami transaction but she has not made reference of any sale deed in her original plaint vide which Surjit Singh has disposed of the property. However she has merely mentioned in para 4 that family arrangement was executed and it appears to be new fact which is now being added by the plaintiff in her plaint at very belated stage, after one decade of filing of present suit which is not permissible.” 6. No illegality or perversity could be pointed out in the findings of the trial court which may warrant interference by this Court in exercise of jurisdiction under Article 227 of the Constitution of India. 7. Finding no merit in the revision petition, the same is dismissed. November 25, 2011 (Ajay Kumar Mittal) ‘gs’ Judge 5