C.R. No. 2993 of 2007 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 2993 of 2007 Date of Decision: August 31, 2009 Shri Guru Granth Sahib and another …..Petitioners Vs. Varinder Dass and another …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. S.C. Kapoor, Senior Advocate with Mr. Harminderjit Singh, Advocate for the petitioners. Mr.M.L. Saggar, Senior Advocate with Ms. Taranjeet Kaur, Advocate, for the respondents. -.- M.M.S. BEDI, J. Vide impugned order dated May 7, 2007, the trial Court partly allowed the application under Order 6 Rule 17 CPC. Aggrieved by the part of the order disallowing the amendment, the plaintiffs have preferred this revision petition under Article 227 of the Constitution of India. The plaintiff- petitioners have filed a suit for declaration that plaintiff- petitioner C.R. No. 2993 of 2007 [2] No.1 is owner in possession of the suit property mentioned in heading of the plaint and that the defendant- respondents are not Mohitmim/Chela of the plaintiff and the mutation and other revenue entries indicating defendants to be Mohitmim/ Chela or connecting them with suit property are wrong and illegal and deserves to be set aside/ corrected in the name of plaintiff No.1. The plaintiffs had filed an application for amendment of the plaint wherein the plaintiff- petitioners wanted to claim that they are Muafidars and beneficiaries in possession of the suit property in the heading, prayer and relevant paragraphs of the plaint. The trial Court declined the said proposed amendment observing that if allowed, it would change the entire nature of the case and would amount to withdrawing the admission made by the plaintiffs, as the plaintiffs have nowhere stated in the application that admission by them in the plaint was due to misconception or any other relevant fact. The trial Court observed that an important right which has been accrued to the defendants would be affected by the proposed amendment, if allowed. The plaintiff- petitioners had also sought an amendment in the plaint to add in para 5 that defendant No.1 was removed as Mohitmim of the Maufi suit land by the Deputy Commissioner-cum- Collector, Kapurthala, vide order dated May 25, 2004 and the appeal filed by defendant No.1 against the said order was dismissed by the Commissioner on August 17, 2004. The incorporation of abovesaid fact was permitted by the impugned order by partly allowing the amendment. Sh.S.C. Kapoor, Senior Advocate appearing for the plaintiff- petitioners contended that the amendment sought for by the petitioners will C.R. No. 2993 of 2007 [3] not, in any manner, change the nature of the suit as the original suit for declaration claiming ownership and possession over the suit property is to be explained by disclosing the real status of the petitioners i.e. being Muafidars in possession of the property, nature of the suit, will not change, in any manner. He argued that the plaintiffs have also sought to substitute word “Sri’ by word “Dharamshala” in the description of plaintiff No.1. It is a correction of mis-description of the party of the plaintiff and will not, in any manner, change the nature of the suit. It was urged that the suit was at initial stage and the evidence had not started as such refusing the amendment, parting the plaintiff- petitioners to enter into fresh litigation, will not be in the interest of justice. The plaintiffs did not seek to withdraw any admission but only tried to explain their claim of ownership by stating that they are Muafedars of the property in dispute. He relied upon Rajesh Kumar Aggarwal and others Vs. K.K. Modi and others, 2006 (2) RCR (Civil) 577 in support of his contention that it is mandatory on the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. The Court should not go into the correctness or falsity of the case in the amendment and should not record a finding on the merits of the amendment which are sought to be amended by way of amendment. At the stage of amendment, the merits are not to be adjudication upon. On the other hand, Mr.M.L. Saggar, Senior Advocate appearing for the defendant- respondent vehemently opposed the amendment of the plaint contending that before an amendment is carried on C.R. No. 2993 of 2007 [4] in terms of Order 6 Rule 17 CPC, Court is required to apply its mind on several factors including whether by reason of such amendment, the claimant intends to resile from an expressed admission made by him and in such eventuality, the application for amendment may not be allowed. He argued that if the party applying for amendment was acting malafide, the amendment should be out-rightly rejected. He referred to the principles of amendment laid down in Gautam Sarup Vs. Leela Jetly and others, (2008) 7 SCC 85, inter-alia laying down for resiling from admissions made in original pleadings is impermissible under Order 6 Rule 17 CPC. In order to highlight the malafide of the petitioners, he contended that the amendment sought for his contrary to the revenue record. In order to substantiate his arguments, he referred to Jamabandi for the 1997-98 wherein the name of the owner of the property in the dispute is mentioned as “Sham Lat Patti Johal Hasab Rasad Khewat”. Name of the person in possession is shown as Dharamshala Guru Granth Sahib Maufidar Babehatmam, Mohitmim Varinder Dass, Sadh Udasi Mahant Darga Dass, Chela Mahant Sadh Udasi, sewadar, Khudkast. It was argued by Mr.Saggar that the plaintiff had forged the said jamabandi and produced the same in civil Court by wrongly mentioning the name of the plaintiff as Sri Guru Granth Sahib, Babetmam Committee Deh, meaning thereby that the plaintiffs wanted to show a wrong name of the owner under the management of the Committee formed by the petitioners. He has placed on record the said alleged forged jamabandi as annexure R-5. He submitted that a criminal complaint has been filed under Section 420, 465, 466, 467, C.R. No. 2993 of 2007 [5] 468,471, 166/167 IPC etc. against Rajesh Kumar, Shiv Kumar, Kewal Krishan Bedi and Raj Kumar Bedi and others by Mahant Varinder Dass, the defendant in the present case, in the Court of Sub Divisional Judicial Magistrate, Phagwara, for producing a fabricated forged jamabandi claiming the same to be genuine document. Copy of the compliant has been placed on the record. It is contended that the forgery committed by the plaintiffs had been pleaded in the written statement also in preliminary objection No.5 to the effect that the plaintiffs had based their claim on fictitious fard jamabandi. In case the amendment is allowed, the rights of the defendant- respondents who have filed a compliant will be defeated. I have heard counsel for the parties at length. The main contention of respondents is that the description of plaintiff No.1 has been given on the basis of forged revenue record and that by bringing the actual revenue record on the file, a plea has been taken that the suit deserves to be dismissed as the plaintiffs have tried to play a fraud with the Court and that in view of plaintiffs having suppressed the true facts about the revenue entries in the record, their suit for injunction is liable to be dismissed. I am of the opinion that it is not a stage to determine whether the original suit has been filed on the basis of forged or fictitious documents especially when a specific plea has been taken by the defendant- respondents to that effect which is required to be determined by the trial Court. Moreover, the affect of plaintiffs having filed a suit on the basis of forged revenue record, will have to be determined by the trial Court. The plaintiffs have prayed for the amendment of the plaint after the preliminary objection had been taken C.R. No. 2993 of 2007 [6] regarding the fictitious fard jamabandi. Whether the jamabandi placed on record by the plaintiff is forged, is not material for the purpose of amendment. The plaintiff- petitioners seeks to incorporate the name of plaintiff- respondent No.1 in consonance with the revenue record which is relied upon by the respondents in the written statement. The trial is at initial stage. Issues have not been framed. The amendment appears to be necessary for the purpose of determining the real question in controversy between the parties. So far as the claim of the defendant- respondents that the rights of the defendants in their private complaint will be defeated by allowing the amendment, is misconceived. The amendment of the pleadings will not, in any manner, affect the private complaint which is based upon the documents. Even defence of the defendants cannot be defeated at this stage by making any observation as to under what circumstances the plaintiffs had filed the jamabandi which forms part of the Civil suit. An amendment of the plaint cannot be disallowed on the ground that it will defeat the rights of opposite party in a criminal case. The criminal compliant filed by the defendants has to be decided on the basis of its own merits. In view of the above circumstances, the impugned order declining the amendment sought for by the plaintiffs is set aside and it is ordered that the plaintiffs will be entitled to amend the plaint subject to payment of costs of Rs.10000/-. Parties are directed to appear before the Civil Court on October 10, 2009 for further proceedings in accordance with law. C.R. No. 2993 of 2007 [7] August 31, 2009 (M.M.S.BEDI) sanjay JUDGE