CR No.1669 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.1669 of 2008 (O&M) Date of Decision: 26.4.2010 Bala .... Petitioner. Versus Rajinder Singh and others .....Respondents. CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.C.B.Goel, Advocate for the petitioner. Mr.Adarsh Jain, Advocate for respondents No.1 to 5. RAKESH KUMAR JAIN J. This revision petition has arisen out of an order passed by the learned Additional Civil Judge (Sr.Division), Panipat dated 9.2.2008 whereby an application filed under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short `CPC') has been dismissed. Learned counsel for the petitioner has submitted that defendant No.5 (Maha Singh) suffered a collusive decree in favour of defendants No.1 to 4 on 19.7.1990. The said decree was challenged by defendants No.6 to 8 along with the present petitioner, however, the said suit was dismissed in terms of Order 17 Rule 3 CPC on 13.9.1999. The petitioner alone had filed the present suit for declaration challenging the decree passed in civil suit No.407/1990 and decree passed in civil suit No.184/1996 on the ground that she was a minor at the time when the suit was filed. During the pendency of the suit, an application for amendment has been filed in order to plead that CR No.1669 of 2008 (O&M) -2- “and for separate possession by way of partition of Gair Mumkin Banjar Kadim property which is marked by letters ABCDE ; shown red in the site plan and bounded as under : North : Property of G.P.Nangal Kheri and in possession of Rajender Singh and house of Sukhiya s/o Nanha Ram. South: Property of Harison East: Open space of G.T.road West: Thorough fair/rasta which comprises khasra no.54, killa No.6/2(3-0), khasra No.55, Killa No.10(2-4), situated within the area of village Nangal Kheri, Tehsil and District Panipat.” On the basis of this pleading, same prayer was made in the prayer clause. It is submitted by learned counsel for the petitioner that the suit had not made any headway as even issues were not framed when the application was filed. On the other hand, counsel for the respondents has submitted that the petitioner is shown as a married woman in the plaint (Annexure R- 1) therefore, it cannot be said that she was minor at the time when the suit was filed. The question in this case is also with regard to the fact as to whether the petitioner was minor at the time when the earlier suit was dismissed in terms of Order 17 Rule 3 CPC on 13.9.1999. After hearing the learned counsel for the parties, I am of the considered opinion that this revision petition deserves to be allowed because the reasoning adopted by the trial Court is not in consonance with law. The trial Court is not supposed to observe on the merits of the case and is only required to see whether in the facts and circumstances of the case, amendment in the plaint is required or not for doing complete justice CR No.1669 of 2008 (O&M) -3- between the parties. In my considered opinion, the petitioner should be allowed to take this plea of partition of the suit property as well while seeking declaration that the judgment and decree passed in the earlier two suits is illegal and is not binding upon her rights as the suit is at the initial stage and the application for amendment was filed when even the issues were not framed. Thus, no prejudice would be caused to the respondent if the amendment is allowed to be carried out. In view of the above, the revision petition is allowed and the impugned order dated 9.2.2008 is set aside. (RAKESH KUMAR JAIN) 26.4.2010 JUDGE Meenu