C.R. No. 6573 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 6573 of 2008 (O&M) Date of decision: February 20, 2009 Surinder Singh and others .. Petitioners v. Mehar Singh .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. S.S. Dinarpur, Advocate for the petitioners. Mr. Adarsh Jain, Advocate for the respondent. .. Rajesh Bindal J. Challenge in the present petition is to the order dated 12.11.2008, passed by the learned court below, whereby application filed by the respondent- plaintiff for amendment of the plaint in a suit filed for declaration, relief of possession was claimed, was allowed. Briefly, the facts are that the respondent-plaintiff filed a suit for declaration challenging the decree dated 2.6.1988, suffered by Babu Ram in favour of the petitioners-defendants of the property in dispute, in which after framing of the issues, the suit was dismissed in default on 18.5.1999. Even the application for restoration thereof was dismissed, which order was upheld in appeal. However, this court vide order dated 14.1.2008 allowed the application for restoration and the proceedings in the suit commenced thereafter. It was during the pendency thereof that application for amendment of the plaint was filed seeking relief of possession as well, which having been allowed by the learned court below, the petitioners-defendants are before this Court. Learned counsel for the petitioners submitted that when the application for amendment of the plaint was filed, the trial of the suit was at its fag end. At that stage, the prayer for amendment of the plaint should not have been permitted, as the same would unnecessarily delay the proceedings in the suit which is already pending since 1991. On account of the fault of the respondent-plaintiff for almost 9 years, it remained dismissed in default as well. He further submitted that amendment is nothing else but an effort by the respondent-plaintiff to fill up C.R. No. 6573 of 2008 [2] the lacuna in the suit already filed, which was not maintainable as such without the relief of possession and the lacuna should not be permitted to be filled up at the later stage and the claim made for possession was time barred at this stage. On the other hand, learned counsel for the respondent submitted that no illegality has been committed by the learned court below in accepting the prayer made by him for amendment of the plaint. In fact, the petitioners wanted to grab the property of deceased-Babu Ram, who died intestate. They got successive decree in their favour fraudulently. An earlier decree dated 23.5.1986 obtained by the petitioners with regard to the property of Babu Ram was held to be a result of fraud and misrepresentation. The decree, which is challenged in the suit is also pertaining to the same property, which was obtained by the petitioners on 2.6.1988. There is no question of delay of trial in the suit as the respondent-plaintiff had only sought to claim the relief of possession, for which no evidence is required to be led as the evidence already on record is sufficient. A suit for possession on the basis of ownership can be filed at any time. In fact, the respondent is owner of the property, being collateral of deceased-Babu Ram. Even a suit filed for possession at this stage would be within limitation. Heard learned counsel for the parties and perused the record. The fact is that initially it was a suit, which was filed for declaration in which the amendment is sought to claim the relief of possession as well. The application for amendment was filed with the plea that during the period the suit remained dismissed in default, the possession of the property was taken by the petitioners from the respondent and the cause of action to pray for relief of possession accrued during the pendency of the suit. Though learned counsel for the petitioners tried to dispel the contention so raised, however, this court would not be opining thereon finally at this stage for the reason that the same is subject- matter of evidence produced/to be produced by the parties before the court below. This Court in Taranjit Kaur and others v. Navneet Kaur and others, 2006(3) Civil Court Cases 277 (P&H) opined that if it is found by the court that the suit filed by the petitioner is not in proper form and was not maintainable for the reason that relief of possession had not been claimed, the suit should not be dismissed. Rather, the court should grant opportunity to the plaintiff to amend the plaint to bring it in proper form. Mere delay in filing of the application is not fatal for allowing the amendment to claim the relief of possession. Even the plea raised by learned counsel for the petitioners that if the amendment is allowed at this stage, the same will delay the proceedings in the suit is also misconceived for the reason that learned counsel for the respondent-plaintiff fairly stated that it is only that C.R. No. 6573 of 2008 [3] pleadings are sought to be amended and no evidence is to be led by him as the evidence already on record is sufficient for the purpose of relief claimed in the amended plaint. For the reasons stated above, I do not find any merit in the present petition and the same is accordingly dismissed. (Rajesh Bindal) Judge February 20, 2009 mk