Civil Revision No. 4644 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4644 of 2010 Date of Decision: 02.05.2011 *** Kulwant Kaur .. Petitioner Vs. Harbans Kaur & Ors. .. Respondents CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR Present:- Mr. Ashish Gupta, Advocate for the petitioner. Mr. S.K. Arora, Advocate for respondents No.1 and 2. *** ARVIND KUMAR, J. The predecessor-in-interest of petitioner filed a suit for declaration and consequential relief of permanent injunction against the respondents. Therein, she filed an application for amendment of the plaint to incorporate the relief of recovery of possession, which the defendants took from her forcibly during pendency of the suit. The defendants contested the application on the ground that a false plea is being taken by the plaintiff, whereas the defendant Harbans Kaur is already in possession as owner of the suit land before filing of the suit. The learned Court below by dint of order dated 4.6.2010 dismissed the application, leading to the institution of the present revision petition. Order VI Rule 17 CPC deals with the amendment of pleadings and provides that the Court may at any stage of the proceedings allow either party to alter or amend pleadings in such a 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. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under:- Civil Revision No. 4644 of 2010 2 “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.” From the above, it is clear that the Court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of trial. It is evident from the record that while deciding the application of the plaintiff for grant of ad-interim injunction, the Courts below found the defendants to be in possession of the suit property. After such observations, the plaintiff came up with the plea that possession has been taken by the defendants forcibly, during the pendency of the suit, without mentioning any date or time when the possession was allegedly taken from her. On the other hand when defendants took the plea of being in possession of the suit land, the plaintiff raised the plea that she has been dispossessed forcibly from the suit land during pendency of suit, knowing well that she is not in possession of the suit land at the time of filing of the suit. In the case of Taranjit Kaur & Ors. Vs. Navneet Kaur & Ors. 2006(2) RCR (Civil) 279, it has been held that merely because the proper relief is not claimed, the suit cannot be dismissed, but it is not the situation in the case in hand. In Hari Singh Kapur Vs. Ajit Kumar Kapur & Ors. 2008(4) RCR (Civil) 255, when it was found that the suit was not in proper form, this Court held that suit should not have been dismissed and plaintiff must be given an opportunity to amend the plaint so as to bring it in the proper form. But in the present case the plaintiff wants to incorporate the facts which were well within her knowledge prior to the filing of the suit. In the case of DAV College, Hoshiarpur Vs. Sarvda Nand Anglo Sanskrit, Higher Secondary School, Managing Committee 1967 AIR (Punjab) 501 the suit for declaration was held not maintainable by the Civil Revision No. 4644 of 2010 3 appellate Court as the defendant was found to be in possession; likewise in the case of Jeet Singh @ Ranjit Singh Vs. Baboo Singh (died) represented through his LRs, 1997(2) PLR 637, it was found that the plaintiff was dispossessed unauthorizedly and accordingly this Court held that the plaintiff must have been asked to amend plaint, but these cases are distinguishable as in the present case the final adjudication has not been done so far. In the considered opinion of the Court, the plaintiff has failed to show her bonafide to show that despite exercise of due diligence she could not mention the facts sought to be incorporated by way of proposed amendment, which altogether will change the nature of the suit to possession from that of injunction. Not only this, the proposed amendment will cause prejudice to the rights of the defendants. Hence, there is no illegality or perversity in the impugned order passed by the Court below. Dismissed. (ARVIND KUMAR) JUDGE May 02,2011 Jiten