C.R. No. 3809 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3809 of 2008 (O&M) Date of decision: February 12, 2009 Food Corporation of India .. Petitioner v. Avnish Kumar and another .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Hari Pal Verma, Advocate for the petitioner. Mr. H. S. Saggu, Advocate for respondent No. 1. ... Rajesh Bindal J. Challenge in the present petition is to the order dated 24.5.2008, whereby in an application filed by respondent No. 1-plaintiff under Order 6 Rule 17 of the Code of Civil Procedure, he has been permitted to amend the plaint. Briefly, the facts are that respondent No. 1-plaintiff filed a suit for mandatory injunction directing the petitioner-defendant to pay the amount of bills of milling of paddy. On an objection being raised by the petitioner regarding maintainability of the suit for mandatory injunction in the written statement filed, the application for amendment was filed seeking recovery of the amount due from the defendants. It is this application for amendment, which has been allowed by the learned court below and the order is impugned in the present petition. At the time of issuance of notice of motion, the contentions raised by learned counsel for the petitioner were noticed as under: “ Learned counsel for the petitioner contends that the defendants, i.e., petitioner and respondent No. 2 herein had filed written statement (Annexure P2) on 19.7.2004, wherein inter alia, they raised objection that suit for mandatory injunction was not maintainable as the plaintiff-respondent no. 1 wanted recovery of money. It is submitted that inspite of said objection, application for amendment of plaint, to convert the suit from the suit for mandatory injunction into the suit for recovery of money, was moved on 25.10.2005 (Annexure P-3). It is contended that by the time C.R. No. 3809 of 2008 [2] application for amendment of plaint was moved, period of limitation for filing suit for recovery of money had already expired and therefore, the proposed amendment could not be made.” Reiterating the submissions made above, it was submitted that with the lapse of time, substantive right had accrued to the petitioner and if the amendment is allowed, to convert the suit for mandatory injunction into a suit for recovery, the same will change the nature of the suit. In case a fresh suit is filed for recovery at this stage, the same would be time barred. On the other hand, learned counsel for respondent No. 1 submitted that the amendment, which has been prayed for and allowed by the learned trial court, does not change the nature of the suit as in the suit originally filed also a direction was sought to the petitioner-defendant to pay the amount of milling charges due to respondent No. 1-plaintiff. Heard learned counsel for the parties and perused the record. It is evident from the facts that the suit is at a very initial stage as the application for amendment was filed immediately after filing the written statement by the petitioner-defendant. The amendment is sought to be challenged on the ground that during the intervening period, the claim for recovery of money from the petitioner-defendant had become time barred, which is sought to be claimed by way of amendment. For that reason, I do not find that respondent No. 1-plaintiff should not be permitted to amend the pleadings. However, in case the claim being made by way of amendment of the plaint has become time barred, the petitioner- defendant can raise the plea of limitation which shall be considered and decided by the trial court by framing an issue in that respect. The revision petition is disposed of in the manner indicated above. (Rajesh Bindal) Judge 12.2.2009 mk