IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3627 of 2010(O&M) Date of Decision: March 11, 2011. Anant Ram. ...... PETITIONER(s) Versus Hans Raj and others. ...... RESPONDENT (s) CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr. Deepak Arora, Advocate for the applicant-petitioner. Mr. Kuldeep Sanwal, Advocate for respondents No.1 and 2. ***** RAM CHAND GUPTA, J.(Oral) CM No.3733-CII of 2011 Application is allowed subject to all just exceptions. CM No.3734-CII of 2011 Requests for placing on record Annexures P4 to P6. The same are taken on record subject to all just exceptions. CM stands disposed of. CR No.3627 of 2010 CR No.3627 of 2010 The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 06.05.2010, Annexure P3 passed by learned Civil Judge(Junior Division), Pathankot vide which application filed by petitioner under Order 6 Rule 17 of Code of Civil Procedure (hereinafter to be referred as the `CPC') for amendment of plaint, was dismissed. I have heard learned counsel for the parties and have gone through the whole record including the impugned order passed by learned trial Court. Facts relevant for the decision of the present revision petition are that, petitioner-plaintiff filed a suit for possession of ¼ share of land in dispute on the basis of will dated 03.05.1996 allegedly executed by his deceased father in his favour and in favour of defendants, who are real brothers of plaintiff. He has also challenged sale deeds dated 06.04.2000 allegedly executed by their father in favour of respondents-defendants on the basis of which mutations No.359, 360 and 361 were also sanctioned. He also challenged the said mutations as well. Sale deeds and mutations have been challenged on the ground that the same were result of fraud and no such sale deeds have been executed by his father during his life time. It is contended that father of petitioner-plaintiff and respondents-defendants died on 27.08.1999. Suit was contested by respondents-defendants. In the written statement, it was mentioned that correct date of sale deeds has not been mentioned by petitioner-plaintiff. Issues were framed. Evidence of both the parties were recorded and the case was fixed for arguments, when an application was moved by the petitioner-plaintiff for amendment of the plaint 2 CR No.3627 of 2010 under Order VI Rule 17 CPC which was contested by respondents- defendants. The application was dismissed by learned trial Court by observing as under:- “After hearing learned counsel for both the parties and after going through the documents available on file, I am of the considered opinion that in the present case the defendant nos.1 and 2 filed written statement on 14.11.2003 and in that written statement the defendants took objections with regard to sale deed alleged by the applicant dated 6.4.2000 and he has categorically mentioned that no such sale deed on that date was ever executed rather the sale deed was executed on 10.5.1999 which was registered with Sub Registrar on 13.5.1999 and the mater was also put up before the witnesses of the plaintiff at the time of their cross examination. Although the change of date of sale deed does not effect the actual position of the present suit but when the plaintiff remained kept mum for more than 6 years and he is seeking declaration with regard to that specific sale deed and further alleged that a valid will was executed by the same person who executed the sale deed namely Puran Chand and the plaintiff has mentioned the date in his pleadings and when this fact was within the knowledge of the plaintiff and why remained mum for such long time for about 6 years, whereas I am also supported with law laid down in 2009(6) Law Herald (SC) 3663 as Revajeetu Builders and Developers v. Narayanasawamy & Sons and others, wherein it is held that: (B) Civil Procedure Code 1908 O.6 R.17 – Amendment of plaint. Principles which ought to be taken into consideration while allowing or rejecting the application for amendment. 1) Whether the amendment sought is imperative for proper and effective adjudication of the case? 2) Whether the application for amendment is bonafide or malafide? 3 CR No.3627 of 2010 3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money. 4) Refusing amendment would in fact lead to injustice or lead to multiple litigation. 5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And 6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. And the witnesses of the plaintiff have already been cross- examined on this particular point regarding date of sale deed and whereas the evidence of both the parties have already been completed and the case is at final stage, hence by making such amendment process of the present suit will restart again and when the case is also become too old and as such in view of the above said citation and discussion no ground has been made out for such amendment at this stage, hence the present application deserves no merit and the same stands dismissed.” It has been contended by learned counsel for the petitioner-plaintiff that sale deeds were in possession of respondents- defendants and they have produced and proved the same and only due to typographical mistake on the part of the counsel for the petitioner-plaintiff date of sale deeds has been wrongly mentioned in the plaint as 06.04.2000 instead of 10.05.1999. It has also been contended that there was negligence on the part of counsel for the petitioner-plaintiff that even during trial and at the time of recording of evidence of parties he did not care to notice the date of sale deeds dated 10.05.1999. It has also been contended that there is no 4 CR No.3627 of 2010 such sale deed dated 06.04.2000 as father of parties expired on 27.08.1999. It is further contended that petitioner-plaintiff does not want to lead any other evidence and he only want the clerical mistake corrected. On the other hand, it has been contended by learned counsel for the respondents-defendants No.1 and 2 that amendment cannot be allowed at the stage of arguments as the sale deeds dated 10.05.1999 were never challenged by petitioner-plaintiff. It has also been contended that specific plea was taken by the respondents-defendants in the written statement that sale deeds have been executed in their favour by their father on 10.05.1999 and not on 06.04.2000 as mentioned in the plaint and however, despite that no application for amendment was filed by the petitioner-plaintiff at the appropriate stage. It is also contended that as the sale deeds dated 10.05.1999 were not challenged suit of petitioner-plaintiff challenging sale deeds dated 10.05.1999 has also become time barred. It is pertinent 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.” 5 CR No.3627 of 2010 A bare perusal of aforementioned amended provision of CPC shows that after commencement of trial the application for amendment ordinarily shall be declined and, however, in exceptional cases, the same can be allowed. In 2009(6) Law Herald (SC) 3663, Revajeetu Builders and Developers v. Narayanasawamy & Sons and others, on which reliance has been placed by learned trial Court, the parameters for deciding the application for amendment of the plaint duly mentioned in the impugned judgment have been laid down by Hon’ble Apex Court. This Court is to see as to whether the case of petitioner-plaintiff is covered under the aforementioned parameters laid down by Hon’ble Apex Court for allowing amendment of the pleadings. The parties are closely related. They are real brothers. Sale deeds are in the possession of respondents-defendants. They have produced the sale deeds and proved the same. There is no sale deed dated 06.04.2000. There could not be any sale deed dated 06.04.2000 as father of parties already expired on 27.08.1999. Petitioner-plaintiff has also challenged the mutations sanctioned on the basis of said sale deeds, the numbers of which have been correctly mentioned in the plaint. Hence, it seems to be a case of sheer negligence on the part of counsel for the petitioner-plaintiff for which petitioner-plaintiff cannot be allowed to suffer. Coordinate Bench of this Court in Ramanand v. Sedhu and others, 2010(2) RCR (Civil) 31 after relying upon another judgment rendered by Hon'ble Apex Court in Ajendraprasadji N.Pande v. Swami Keshvprakeshdasji N., 2007(1) RCR (Civil) 481, has observed as under:- “10. A prayer for amendment of pleadings made after the commencement of a trial, shall ordinarily be declined. Where, 6 CR No.3627 of 2010 however, the applicant establishes that despite the exercise of due diligence, he could not raise the pleadings sought to be pleaded by way of amendment, before the commencement of a trial, a court would be justified in allowing such an amendment. The power, therefore, to allow amendment of pleadings, even after the commencement of the trial, subsists, but with a caveat that the party praying for amendment must establish that despite the exercise of due diligence, the pleadings sought to be pleaded by way of an amendment could not be raised before the trial commenced. A court, therefore, may where it is of the opinion that the amendment is necessary for the purpose of determining the real controversy and if the applicant satisfies the court that despite the exercise of due diligence, he could not raise the pleadings before the trial commenced, allow such a prayer, even after the commencement of the trial.” Hence, in view of these facts, the present revision petition is accepted and the impugned order is, hereby, set aside. As a consequence thereof, the application filed by the petitioner-plaintiff for amendment of the plaint is allowed. However, petitioner-plaintiff is burdened with cost of `10,000/-, which shall be a condition precedent. It is made clear that petitioner-plaintiff would not be entitled to lead any other evidence after this amendment as argued by counsel for the petitioner. Disposed of accordingly. ( RAM CHAND GUPTA ) March 11, 2011. JUDGE 'om' 7 CR No.3627 of 2010 8