CR No.5568 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5568 of 2008 Date of Decision: 17.10.2008 Balraj Singh & Anr. ....Petitioners Vs. Sharanjit Singh & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Sumeet Mahajan, Sr. Advocate, with Mr.S.L.Bhalla and Amandeep Singh, Advocates, for the petitioners. Vinod K.Sharma,J. (Oral) The petitioners challenged the order dated 10.9.2008 passed by the learned Civil Judge (Jr.Division), Ludhiana by invoking the jurisdiction of this court under Article 227 of the Constitution of India. The plaintiff/respondents have sought possession of the suit property by declaring the gift deed executed by defendant No.1 in favour of other defendant-respondents to be void ab initio, ineffective and not binding on the plaintiff/respondents. The plaintiff/respondents by way of amendment sought to implead subsequent vendees as party and also to challenge the sale deeds CR No.5568 of 2008 2 made in their favour. Learned trial court held that the suit has been filed to declare the sale deed dated 26.11.1999 and three other sale deeds dated 29.11.1999 to be null and void on the ground that the property was ancestral co- parcenary in the hands of Amrik Singh which could not be alienated without legal necessity. During the pendency of the application under Order 33 of the Code of Civil Procedure (for short the Code) an application for amendment of the plaint was made to challenge the sale deed dated 22.11.1999 along with other four sale deeds dated 6.4.2000, 7.4.2000, 8.5.2000 and 10.5.2000 on the same ground i.e. the property being ancestral co-parcenary property could not be sold except for legal necessity. The petitioner opposed the amendment on the plea that by way of amendment plaintiff/respondents seek to change the nature of the suit and this plea did not find favour with the learned trial court and stands rejected. Learned trial court has held that the nature of the suit was not changed nor any prejudice was likely to be caused to the petitioners as the case was at initial stage. The court held that the law of amendment is very liberal and the amendments which are necessary for the just and proper adjudication of the case and which would result in avoiding multiplicity of proceedings is required to be allowed. The petitioners have been compensated with costs of Rs.2000/- for the inconvenience caused. Mr.Sumeet Mahajan, learned senior counsel appearing on behalf of the petitioners contends that the application has been moved by the plaintiff/respondents to challenge the sale deeds of the year 1999 and CR No.5568 of 2008 3 2000 and therefore, the plea raised by way of amendment would be barred by law of limitation. It is also the contention of the learned senior counsel that by not challenging the sale deeds in their favour within the time stipulated has resulted in accrual of valuable rights in their favour and therefore, the learned trial court was not justified in allowing the application moved by the plaintiff-respondents under Order 6 Rule 17 of the Code. In support of his contention learned senior counsel placed reliance on the judgment of Hon'ble Supreme Court in the case of Vishwambhar and others Vs. Laxminarayan (Dead) through LRs. and Another (2001) 6 SCC 163. However, the judgment relied upon by the petitioners is of no help in support of the contention so raised. Hon'ble Supreme Court in the case of Vishwambhar and others Vs. Laxminarayan (Dead) through LRs. and Another (supra) has been pleased to lay down that the amendment though properly may not relate back to the date of filing of the suit and cure the defect of limitation. Hon'ble Supreme Court further observed that where the amendment changed the basis of the suit itself the suit would be taken to have been filed on the date of amendment for the purposes of limitation. However, it may be noticed in the present case that the basis of the suit has not been changed The plaintiff/respondents by way of amendment had sought to include the sale deeds which were not within his knowledge when the suit was filed. It is well settled law that while allowing application for amendment the court is only required to see whether the amendment sought is necessary for the just and proper adjudication of the CR No.5568 of 2008 4 case and to determine the real controversy between the parties. Amendment is also to be allowed to avoid multiplicity of proceedings The court is not required to adjudicate upon the merits of the case. It may further be noticed that the case is at initial stage. Rather the application moved by the plaintiff/respondents under Order 33 of the Code to issue as indigent persons is yet to be decided The court was, therefore, fully justified in allowing the amendment in order to determine the real controversy between as the right of the petitioners to contest the case is not defeated by allowing the amendment. The impugned order is based on well settled principle of law with regard to the amendment which does not call for any interference by this court. No merit. Dismissed. 17.10.2008 (Vinod K.Sharma) rp Judge