Civil Revision No.7373 of 2009(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.7373 of 2009(O&M) Date of Decision: March 25, 2011 Nand Lal Bajaj .....Petitioner v. Om Parkash and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Ashwani Verma, Advocate for the petitioner. Mr.R.S.Mamli, Advocate for respondent no.1. ..... RAM CHAND GUPTA, J. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 23.11.2009, Annexure P4, passed by learned Civil Judge, Senior Division, Fatehabad, vide which application filed by respondent no.1-plaintiff for amendment of plaint under Order VI Rule 17 of the Code of Civil Procedure (hereinafter to be referred as `the Code') at the stage of arguments was allowed. 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 respondent no.1-plaintiff filed a suit against present petitioner- defendant no.1 and respondents-defendants no.2 and 3 for a decree for permanent injunction restraining them from alienating the suit property to anybody else on the ground that they entered into an agreement to sell the property in dispute in his favour on 22.8.2004. Suit was contested by petitioner-defendant no.1 by taking a specific plea that no such agreement to sell was executed by him in favour of respondent-plaintiff. The alleged agreement is dated 22.8.2004 and the suit was filed on 22.3.2007. Written Civil Revision No.7373 of 2009(O&M) -2- statement was filed by present petitioner-defendant on 12.6.2007. Issues were framed. Both the parties adduced evidence. Case was fixed for rebuttal and arguments by learned trial Court when the present application for amendment of the plaint was filed on 16.11.2009. The application for amendment was contested by petitioner- defendant no.1. However, learned trial Court allowed the same vide impugned order by placing reliance upon a judgment passed by a coordinate Bench of this Court in Kuljit Singh v. Sukhdev Singh and others, 2009(3) RCR (Civil) 751 by observing as under:- “6. In view of observations made in Kuljit Singh versus Sukhdev singh (supra) the plaintiff is entitled for amendment of plaint under Order VI Rule 17 CPC. Since the case is at the stage of rebuttal evidence, the amendment sought by the plaintiff shall give rise to the suit for de novo trial. Thus, this application is allowed subject to costs of `2,000/- to be deposited by the plaintiff in District Legal Services Authority, Fatehabad.” It has been contended by learned counsel for the petitioner that law is well settled that, after amendment of Order VI Rule 17 of the Code vide which proviso has been added, amendment cannot be allowed after commencement of trial unless it is shown that plaintiff could not file the application for amendment at earlier stage, despite due diligence. It is further contended that, however, in this case when execution of agreement was denied by petitioner-defendant in the written statement, there is no explanation on the part of respondent-plaintiff as to why application was not filed before commencement of trial and as to why he waited till the case reached at the final stage. It is further contended that learned trial Court has not given any reason for allowing the application for amendment filed by respondent-plaintiff. He has also placed reliance upon Vidyabai and others v. Padmalatha and another, (2009) 2 Supreme court Cases 409 and Ajendraprasadji N.Pande and another v. Swami Keshavprakeshdasji N. and others, 2007(1) RCR (Civil) 481. On the other hand, it has been contended by learned counsel for the respondent-plaintiff that as per agreement, petitioner-defendant was to take no objection from the bank after clearing the loan and was to give Civil Revision No.7373 of 2009(O&M) -3- notice to respondent-plaintiff and that, however, as he did not obtain no objection from the bank and, hence, there was no delay in filing the application for amendment of plaint for seeking relief of specific performance of the agreement. He has placed reliance upon Kuljit Singh's case (Supra), and argued that the amendment can be allowed to avoid multiplicity of proceedings. It is relevant 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.” In Vidyabai and others, (2009) 2 Supreme Court Cases 409, Hon'ble Apex Court observed as under:- “10.By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17of the Code, which reads as under: `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.' It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.” Civil Revision No.7373 of 2009(O&M) -4- It has further been observed as under: “19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court’s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint. 20. In Salem Advocate Bar Assn. (supra), this Court has upheld the validity of the said proviso. In any event, the constitutionality of the said provision is not in question before us nor we in this appeal are required to go into the said question. Furthermore, the judgment of the High Court does not satisfy the test of judicial review. It has not been found that the learned trial Judge exceeded its jurisdiction in passing the order impugned before it. It has also not been found that any error of law has been committed by it. The High Court did not deal with the contentions raised before it. It has not applied its mind on the jurisdictional issue. The impugned judgment, therefore, cannot be sustained, which is set aside accordingly.” In Ajendraprasadji N. Pande and another's case (supra) it has been observed as under:- “57.The above averment, in our opinion, does not satisfy the requirement of Order VI Rule 17 without giving the particulars which would satisfy the requirement of law that the matters now sought to be introduced by the amendment could not have been raised earlier in respect of due diligence. As held by this Court in Kailash v. Nankhu and ors., (supra), the trial is deemed to commence when the issues are settled and the case is set down for recording of Civil Revision No.7373 of 2009(O&M) -5- evidence.” Hence, in view of proviso to Order VI Rule 17 of the Code and in view of legal proposition held by Hon'ble Apex Court in aforementioned judgments, there is no dispute that proviso to Order VI Rule 17 of the Code has been held to be mandatory. Amendment of pleadings cannot be allowed after commencement of trial unless the Court comes to the conclusion that party seeking amendment could not have raised such plea inspite of due diligence. In the instant case, execution of agreement by petitioner- defendant no.1 has been denied even at the time of filing of the written statement. However, respondent-plaintiff waited till the evidence was adduced by both the parties and filed application for getting their suit converted from mere injunction to suit for specific performance when the case was fixed for rebuttal and arguments. No plea has been taken by respondent-plaintiff as to why he could not file this application immediately after filing written statement by petitioner-defendant for seeking relief for specific performance of alleged agreement to sell executed in his favour by petitioner-defendant. The plea taken by learned counsel for the respondent-plaintiff that petitioner-defendant was to obtain no objection certificate from the bank and that as he did not get the same, hence, he could not file application for seeking amendment earlier, does not help the case of respondent-plaintiff. When the very execution of the agreement to sell has been denied by petitioner-defendant, it cannot be said that he was under an obligation to apply to the bank to seek no objection certificate in view of the said plea. Moreover, after filing of the written statement, nothing new happened giving cause of action to respondent-plaintiff to seek amendment for seeking relief of specific performance of alleged agreement to sell executed in his favour by petitioner-defendant. So far as Kuljit Singh's case (supra) on which reliance has been placed by learned trial Court and learned counsel for the respondent- plaintiff is concerned, in that case no evidence was adduced when the application for amendment for seeking relief of specific performance was filed. Sufficient explanation was also given by plaintiff as to why he could not file the application earlier as the case remained pending for deciding one Civil Revision No.7373 of 2009(O&M) -6- application or the other and, hence, on the peculiar facts and circumstances of that case it was observed that when no evidence was recorded and when fresh suit for possession by way of specific performance of the agreement within three years from the date of agreement could be filed, in order to avoid multiplicity of litigation, amendment was allowed. However, in the present case, the alleged agreement is dated 22.8.2004, whereas the present application for amendment is filed on 16.11.2009, i.e., after expiry of three years from the date of alleged agreement. There is no explanation as to why respondent-plaintiff waited till the suit reached at the stage of arguments for seeking amendment. Hence, in view of the mandatory provision of proviso added to Order VI Rule 17 of the Code, learned trial Court should not have allowed the application of respondent-plaintiff for amendment of plaint for seeking relief of specific performance of the agreement at the final stage of the case. Moreover, no reason, whatsoever, has been given by learned trial Court while allowing the said application. Learned trial Court has placed reliance upon Kuljit Singh's case (supra) without discussing the facts of that case and without discussing the facts of the present case and without even mentioning as to why respondent-plaintiff could not file application for amendment earlier. Hence, in view of the aforementioned facts, an illegality and material irregularity has been committed by learned trial Court in allowing the application of respondent-plaintiff for amendment at the stage of rebuttal and arguments. Hence, the present revision petition is accepted. Impugned order is set aside and as a consequence thereof, the application filed by respondent-plaintiff for amendment of plaint stands dismissed. 25.3.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No. Civil Revision No.7373 of 2009(O&M) -7-