Civil Revision No.2895 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.2895 of 2011(O&M) Date of Decision: May 3, 2011 Manjit Kaur and another .....Petitioners v. Gurmit Kaur and another .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Bipan Sharma, Advocate and Mr.Amarpreet Singh, Advocate for the petitioners. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.11580-CII of 2011 Application is allowed subject to all just exceptions. Civil Revision No.2895 of 2011 Learned counsel for the petitioners requests that inadvertently at page No.15 of the petition, application has been mentioned as Annexure P1, whereas the same is Annexure P2. On the oral request, the requisite amendment is permitted to be made at page no.15 of the petition. Registry is directed to make the necessary correction. The present revision petition has been filed under Article 227 of the Constitution of India for quashing of order dated 17.2.2011, passed by learned Additional Civil Judge, Senior Division, SAS Nagar, vide which application filed by petitioners-defendants no.1 and 2 under Order VI Rule 17 of the Code of Civil Procedure (for short `the Code') for amendment of the written statement was dismissed. I have heard learned counsel for the petitioners and have gone through the whole record carefully including the impugned order passed by learned trial Court. Civil Revision No.2895 of 2011(O&M) -2- Facts relevant for the decision of present revision petition are that a suit for declaration was filed by respondent no.1-plaintiff-Gurmit Kaur that she and defendants are joint owners in joint possession of the property, fully described in the heading of the plaint and that the Will dated 13.9.1996 allegedly executed by Mohinder Singh, father of the parties in favour of petitioners-defendants no.1 and 2 is false, forged and fabricated document, liable to be set aside and subsequent mutation sanctioned on the basis of above said will is also liable to be set aside. Declaration has also been sought that sale deed dated 22.12.2005 regarding the portion of the land in dispute executed by petitioners-defendants no.1 and 2 in favour of defendant no.3 is also illegal and void. Suit was contested by present petitioners. Issues were framed. Evidence was adduced by respondent no.1-plaintiff. Case was fixed for evidence of defendants, when the present application for amendment of the written statement under Order VI Rule 17 of the Code was filed, which was dismissed by learned trial Court by observing as under:- “4. Perusal of the file reveals that in this case after framing of issues, plaintiff has already conclude his evidence on 29.10.2009 and thereafter opportunities were granted to defendant to complete his evidence and after availing four opportunities defendant has filed the present application for amendment of written statement. Perusal of the application for amendment filed by the defendant reveals that what amendment the defendant wants to incorporate is with regard to the incident that took place in year 1989, the written statement by the defendant in this case was filed on 5.2.2009 meaning thereby the applicant/defendants no.1 and 2 were in the knowledge of the facts which the applicants want to incorporate by way of amendment but then no due diligence was taken by the defendants no.1 and 2 to incorporate these facts. Perusal of the file also reveals that in this case the first written statement filed by the defendant on 15.3.2007 and thereafter the plaint was amended by the plaintiff. Again written statement to the amended plaint was filed on 5.2.2009. At both times facts which the defendant was to incorporate by Civil Revision No.2895 of 2011(O&M) -3- way of amendment has not been incorporated. Meaning thereby no diligence has been taken to incorporate the facts which the defendant want to plead by way of amendment. So I found the application devoid of any merits and the same is hereby dismissed. Now to come up for 21.5.2011 for evidence of the defendant.” 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.” Law has been well settled by Hon'ble Apex Court in Vidyabai and others v. Padmalatha and another, 2009(1) RCR (Civil) 763 that no application for amendment is to be allowed after commencement of trial,unless the Court comes to the conclusion that in spite of due diligence, the parties could not have raised the matter before commencement of trial. In the present case, evidence was already adduced by respondent-plaintiff and no evidence was adduced by petitioners-defendants despite availing sufficient opportunities and at a later stage, present application was filed for amendment of the written statement. Petitioners- defendants intend to incorporate in the written statement some incident allegedly took place in the year 1989. Earlier written statement was filed on 5.2.2009. It has been contended by learned counsel for the petitioners that incident was not in the knowledge of the petitioners earlier. Alleged incident is that sister of petitioners-defendants, i.e., respondent no.2- defendant no.4 Sukihjit Kaur with the help of respondent no.1-plaintiff- Civil Revision No.2895 of 2011(O&M) -4- Gurmit Kaur, another sister of petitioners-defendants had run away from the house and contracted love marriage and hence, their father excluded both of them from inheriting his property. However, learned trial Court has rightly observed that these facts could be pleaded by petitioners-defendants in their written statement with due diligence. Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 3.5.2011 (Ram Chand Gupta) meenu Judge