C.R. No. 4467 of 2010 -1- ***** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 4467 of 2010 (O&M) Date of Decision : 21.07.2010 Jaipal .......... Petitioner Versus Jagat Singh & another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Harkesh Manuja, Advocate for the petitioner. **** VINOD K. SHARMA, J. (ORAL) This revision petition is directed against the order dated 17.5.2010, passed by the learned Addl. Civil Judge (Sr. Div.), Sonepat, vide which application moved by the petitioner under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint to convert the suit for injunction into one for specific performance stands declined. The plaintiff / petitioner entered into an agreement to sell land measuring 20 Kanal 13 Marla vide agreement to sell dated 9.12.2004. In the agreement it was mentioned, that though part of the land was under mortgage, and that the vendor had the right to sell it. The date for execution of the sale deed was fixed on 11.7.2005. In spite of the expiry of date fixed for execution of the sale deed, the C.R. No. 4467 of 2010 -2- ***** respondent / vendor executed a sale deed on asking of the petitioner in favour of his wife for land measuring 16 Kanals. The petitioner thereafter filed a suit for permanent injunction restraining the defendant / respondent from alienating the property on 31.1.2006 i.e. after the date fixed for execution of the sale deed. The interim prayer of the petitioner for restraining the defendant / respondent from alienating the land was declined, while his possession was ordered to be protected. After dismissal of the injunction application, respondent sold the land to 3rd party. The petitioner, therefore, sought amendment of the suit to convert it into a suit for specific performance. The learned trial Court dismissed the application on the ground, that there was no necessity to implead the subsequent buyer to challenge the sale deed, as the petitioner had an opportunity to file the suit on 11.7.2005 and 27.10.2005, when the part of the land was agreed / sold to the petitioner. The learned counsel for the petitioner contended, that the learned trial Court erred in dismissing the application for amendment by ignoring the settled law. The law of amendment is very liberal and the amendment sought by the petitioner is necessary for proper adjudication of the case, therefore, the application for amendment should have been allowed. The contention of the learned counsel for the petitioner C.R. No. 4467 of 2010 -3- ***** was, that it was agreed by the respondent in the agreement, that he would get the mortgage redeemed, having not done so, no fault could be found with the act of the petitioner, in not filing the suit for specific performance, for want of clearance of the title of the respondent. This contention of the learned counsel for the petitioner, cannot be accepted. The conversion of suit for injunction to specific performance would result in changing the very nature of the suit, it can not be said that the cause of action was not going to change merely because the suit for injunction as well as the specific performance was filed on agreement to sell, as contended. The contention of the learned counsel for the petitioner, that the law of amendment is very liberal, can not be accepted as plea to amend the suit is governed by settled principle i.e. if the suit filed was not competent, when filed it can not be amended to plead altogether a different cause of action by way of amendment. The contention of the learned counsel for the petitioner, that the suit is at initial stage, also can not be accepted, as admittedly issues have already been framed, and trial has commenced and the facts now sought to be pleaded not such which were not within the knowledge of the petitioner or could not be known with due diligence. In view of the proviso to Order 6 Rule 17 of the Code of Civil Procedure, the amendment could not be allowed after the commencement of the trial,in view of the law laid down by Hon'ble C.R. No. 4467 of 2010 -4- ***** Supreme Court in the case of Vidyabai & Ors. Vs. Padmalatha & Anr. 2009(1) RCR(C) 763. No merit. Dismissed. 21.07.2010 (VINOD K. SHARMA) 'sp' JUDGE