C.R. No.7018 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.7018 of 2010 Date of Decision: 27.10.2010 Raghubir Saran ....…Petitioner Versus Smt. Maya Devi and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. N. D. Achint, Advocate for the petitioners. L. N. MITTAL, J (ORAL) Plaintiff has filed the instant revision petition under Article 227 of the Constitution of India assailing order dated 11.10.2010 passed by learned Additional Civil Judge (Senior Division), Gurgaon thereby dismissing application Annexure P-1 moved by the plaintiff for amendment of plaint. The plaintiff filed suit for declaration and permanent injunction. In the amendment application, the plaintiff alleged that during pendency of the suit, the defendants forcibly encroached upon the suit plot of the plaintiff and raised construction. Accordingly, the plaintiff by amendment sought to plead the said fact and sought to make alternative prayer for possession of the suit property. The said amendment application has been dismissed by the trial Court. I have heard learned counsel for the petitioner and perused the case file. Learned counsel for the petitioner contended that interim injunction order was passed by the trial Court on 07.01.2008 and in the second week of January, 2008 itself, the defendants forcibly C.R. No.7018 of 2010 2 dispossessed the plaintiff from the suit property and thereupon the plaintiff-petitioner filed application on 15.01.2008 complaining violation of the temporary injunction order and thus it was apparent that the plaintiff was dispossessed before 15.01.2008 and the trial Court, therefore, should not have dismissed the amendment application on the ground that even date of dispossession of the plaintiff has not been mentioned in the amendment application. I have carefully considered the aforesaid contention, but the same cannot be accepted. On first blush, the contention appears to be very attractive, but going into the facts and circumstances of the case, it becomes apparent that the amendment application moved by the plaintiff-petitioner is malafide and cannot be accepted. As noticed hereinbefore, it is the contention of counsel for the petitioner that the petitioner-plaintiff was dispossessed from the suit property in second week of January, 2008. Counsel for the petitioner also states that amendment application Annexure P-1 was moved in October, 2010. It is thus manifest that the amendment application was moved after delay of two years and nine months for which there is no justification or explanation. Learned counsel for the petitioner referred to averments in paragraph 4 of the revision petition to contend that amendment application could not be moved earlier as application for impleading legal representatives of Jug Lal Goyal defendant No.5 was pending consideration in the trial Court. The contention, however, is untenable, because it has not been stated as to when the said application for impleading LRs of defendant No.5 was moved and when the same was decided. There is only vague and general averment in the revision petition that the said application was pending consideration, but it is not C.R. No.7018 of 2010 3 even mentioned as to for how long or since when and till when the said application remained pending in the trial Court. Even otherwise amendment application could be moved even when application for impleading LRs of defendant No.5 was pending consideration in the trial Court. The aforesaid long and inordinate delay is significant because the plaintiff had allegedly been dispossessed from the suit property at the initial stage of the suit. However, the amendment application was moved when it was last opportunity for evidence of the plaintiff-petitioner. Trial Court was, therefore, justified in observing that the amendment application has been moved only as a delaying tactic. In addition to the aforesaid, the amendment application cannot be allowed in view of proviso to Order 6 Rule 17 of the Code of Civil Procedure. According to the said proviso, no amendment of pleading can be allowed after commencement of trial unless the party seeking amendment could not have raised the matter earlier in spite of due deligence. In the instant case, however, the plaintiff while moving application on 15.01.2008 for initiating proceedings for violation of the interim injunction order could simultaneously move the amendment application as well. However, the plaintiff went through the process of trial and moved application for amendment of plaint when there was last opportunity for evidence of the plaintiff-petitioner and the amendment application was moved after delay of two years and nine months, long after the commencement of the trial. If plaintiff-petitioner had exercised due diligence, he could have moved the amendment application before the commencement of the trial. Consequently, in view of mandatory provision of the proviso to Order 6 Rule 17 of the C.R. No.7018 of 2010 4 Code of Civil Procedure also, the amendment application moved by the plaintiff-petitioner could not have been allowed. For the reasons aforesaid, I find no illegality or jurisdictional error in the impugned order of the trial Court. The revision petition lacks any merit and is accordingly dismissed in limine. ( L. N. MITTAL ) JUDGE 27.10.2010. A. Kaundal