CR No. 4965 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 4965 of 2008 Date of Decision: 11.08.2009 1. Narinder Singh; 2. Bhupinder Singh; sons of Dr. Mohinder Partap Singh, r/o Lalton Kalan, Tehsil and District Ludhiana. ... Revision-Petitioners Versus 1. Manjit Kaur; 2. Urwinder Kaur wife of Jaswinder Singh; both r/o B-XXXVI/27, Vikas Nagar, Pakhowal Road, Ludhiana. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Sumeet Mahajan, Senior Advocate, with Mr. Amandeep Singh, Advocate, for the revision-petitioners. Respondent No. 1, already ex-parte. Respondent No. 2 exparte. SHAM SUNDER, J. * * * * This revision-petition, under Article 227 of the Constitution of India, is directed, against the order dated 25.04.08, rendered by the Court of Civil Judge (Junior Division), Ludhiana, vide which, the application under Order VI, Rule 17, read with Section 151 of the Code of Civil Procedure, for the amendment of plaint, was dismissed. CR No. 4965 of 2008 2 2. During the pendency of suit for permanent injunction, filed by the plaintiffs/revision-petitioners, they moved an application, under Order VI, Rule 17 of the Code of Civil Procedure, for the amendment of plaint, on the ground, that on account of inadvertent error, the boundaries of the suit property, were wrongly described, in the plaint, and the same be allowed to be corrected. It was stated that, even after the correction of the boundaries of the property, by way of amendment, the nature of the suit, will not be changed, nor there will be any change, in the property, in question. It was further stated that the amendment, was essential, for the just decision of the case. It was further stated that, no prejudice, whatsoever, would be caused, to the respondents, in case, the amendment, was allowed. 3. This application, was opposed by the respondents, on the ground, that the trial had commenced, and the case was fixed for the cross- examination of PW1, and, as such, in view of the proviso, engrafted to Order VI, Rule 17 of the Code of Civil Procedure, the amendment, could not be allowed. 4. After hearing the Counsel for the parties, and, on going through the record, the trial Court, dismissed the application mainly, on the ground, that the trial had already commenced, and keeping in view the proviso engrafted to Order VI, Rule 17 of the Code of Civil Procedure, the amendment, could not be allowed. 5. Feeling aggrieved, the instant revision-petition, has been filed by the revision-petitioners. 6. I have heard the Counsel for the revision-petitioner, and have gone through the record of the case, carefully. 7. The Counsel for the revision-petitioner, submitted that the amendment sought would really sub-serve the ultimate cause of justice, and CR No. 4965 of 2008 3 avoid further litigation. He further submitted that, no doubt, the affidavit of PW1, in the shape of examination-in-chief, was submitted, but the cross- examination, was yet to be conducted. He further submitted that the plaintiffs/revision-petitioners, gave the sale deed, to the Counsel, wherein the correct boundaries, were described. He further submitted that, it was for the Counsel, to describe the correct boundaries, in the plaint, but if, on account of some negligence of the Counsel, the same could not be correctly described, the revision-petitioners, could not be made to suffer. He further submitted that, on account of the amendment of plaint, neither there will be any change in the subject matter, nor the nature of the suit, will be altered. He further submitted that the amendment, being essential, for the just decision of the case, was required to be allowed. He further submitted that the order, being illegal, be set aside. He also placed reliance on Rajesh Kumar Aggarwal & others Vs. K.K. Modi and others, 2006, AIR (SC), 1647 and Pankaja & another Vs. Yellappa (D) by LRs and others, 2004, AIR (SC), 4102. 8. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the revision-petitioners, in my considered opinion, it is a fit case, in which, the application for the amendment of plaint, should be allowed, and the order impugned, should be set aside, for the reasons, to be recorded, hereinafter. Correct boundaries of the suit property, in the sale deed dated 09.09.02, registered on 10.09.02, were given. The plaintiffs/revision-petitioners, gave that sale deed to their Counsel. It was for the Counsel, to describe the correct boundaries of the property, on the basis of the sale deed, in the plaint. If the Counsel for the plaintiffs/revision-petitioners, was negligent, in any manner, in describing the correct boundaries of the property, in dispute, in the plaint, on the basis CR No. 4965 of 2008 4 of the sale deed, then they (plaintiffs/revision-petitioners), could not be penalized, to such an extent, as to defeat the ends of justice. The main reason, which weighed with the trial Court, for declining the amendment, was that, the trial had already commenced, and in view of the proviso engrafted to Order VI, Rule 17 of the Code of Civil Procedure, the same (amendment), could not be allowed. Order VI, Rule 17, reads as under:- “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 they 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.” 9. No doubt, the affidavit of one witness, had already been furnished, and the cross-examination, was yet to be conducted, when the application for amendment, was filed, in the trial Court. Whatever the case may be, the trial had already commenced. According to the proviso engrafted to Order VI, Rule 17 of the Code of Civil Procedure, 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, then the amendment, even after the commencement of trial, could be allowed. As stated above, the boundaries, were described, in the sale deed. These were to be mentioned, in the plaint. As stated above, if there was any negligence, on the part of the Counsel for the plaintiffs/revision-petitioners, in describing the boundaries correctly, the amendment, could not be disallowed. The factum of description of wrong boundaries, in the plaint, did not come to the knowledge of the plaintiffs/revision-petitioners earlier, even despite due CR No. 4965 of 2008 5 diligence. The amendment, is essential, for the just decision of the case. No prejudice, whatsoever, shall be caused to the respondents, on account of allowing the application for amendment. Even the nature of the suit and of the property, is not going to be altered, on account of the amendment. In Pankaja and anothers' case (supra), it was held, that if the amendment really sub-serves the ultimate cause of justice, and avoids further litigation, the same, should be allowed. There can be no straight jacket formula, for allowing or disallowing an amendment. In Rajesh Kumar Aggarwal and others' case (supra), it was held, that it was mandatory, on the Court, to allow all amendments, which are necessary, for the purpose of determining the real questions, in controversy, between the parties. It was also held that the rule of amendment, is essentially a rule of justice, equity and good conscience, and power of amendment, should be exercised, in the larger interest of justice. Procedural obstacles, ought not to impede the dispensation of justice. If the basic structure of the suit, is not going to be changed, instead of going in second round of litigation, the parties, should be allowed to raise all issues, connected with the same dispute, even by taking cognizance of subsequent events, arising during the pendency of litigation. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. The trial Court, was, thus, not legally correct, in dismissing the application. The order impugned suffers from illegality and perversity, warranting the interference of this Court, in its revisional jurisdiction, under Article 227 of the Constitution of India. The order impugned, is liable to be set aside. 10. For the reasons recorded above, the revision-petition, is accepted. The order dated 25.04.08, is set aside. The application under Order VI, Rule 17 of the Code of Civil Procedure, for the amendment of CR No. 4965 of 2008 6 plaint, is allowed. The parties, are directed, to appear, in the trial Court, on 17.09.09, at 10.00 A.M. Sharp, for further proceedings. 11.08.2009 (SHAM SUNDER) Amodh JUDGE