C.R. No. 4928 of 2010 -1- ***** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 4928 of 2010 (O&M) Date of Decision : 09.08.2010 Surjit Singh .......... Petitioner Versus Manjit Singh & another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Mukhtiar Singh, Advocate for the petitioner. **** VINOD K. SHARMA, J. (ORAL) The petitioner has invoked the revisional jurisdiction of this Court under Article 227 of the Constitution of India, by challenging the order dated 4.5.2010, passed by the learned Civil Judge (Jr. Div.), Ludhiana, vide which the application moved by the plaintiff / petitioner under Order 6 Rule 17 of the Code of Civil Procedure stands declined. The petitioner filed a suit for permanent injunction restraining the defendants either themselves or through their agents, attorneys, servants, relatives, associates, police, Gram Panchayat, assignees etc. from putting any hindrance or obstruction in the peaceful enjoyment and use of street illegally and forcibly and further from closing the street shown as green in the site plan. The prayer for mandatory injunction was also made, for directing the defendants to remove gate and vacate the public street, C.R. No. 4928 of 2010 -2- ***** shown as red in the site plan, situated within the Lal Lakir of Village Hassanpur, Tehsil and District Ludhiana. When the evidence of the petitioner was going on, the petitioner examined one of the witnesses, in support of his case. In view of the deposition made by the witness examined by the petitioner, it was felt, that the case as set up was not supported by him. The plaintiff / petitioner moved an application for amendment of the plaint, on the ground, that inadvertently the dimension of the property could not be mentioned correctly, at the time of filing of the suit, as well as at the time of filing of the amended plaint. The case of the petitioner, therefore, was that now he wanted to correct the boundaries in the plaint, as per site plan. The application was opposed by the defendant / respondents, by contending that the plaintiff, on an earlier occasion also moved an application for amending the plaint, due to clerical mistake in the dimensions and boundaries of the suit property. The application moved by the plaintiff / petitioner was allowed, and he was allowed to file amended plaint. The written statement to the amended plaint was filed, and after framing of issues, case was fixed for evidence, the petitioner examined one of the witnesses, who did not support the dimensions, as depicted in the plaint. The learned trial Court dismissed the application for the reason, that the petitioner had already availed one opportunity to amend the petition for correction of dimensions and the boundaries, therefore, he could not be allowed second time to amend the plaint, C.R. No. 4928 of 2010 -3- ***** in view of the fact, that the proviso to Order 6 Rule 17 of the Code of Civil Procedure bars the amendment of the plaint after the commencement of trial, with regard to the facts, which were within the knowledge of the party or could be known by due diligence. The learned counsel for the petitioner has challenged the impugned order by contending, that the learned trial Court failed to notice, that no prejudice was likely to be caused to the defendants / respondents, and in any case they could have been compensated with costs, in case the amendment is allowed, but the application for amendment of the plaint, which was necessary for proper adjudication of the case could not have been declined. The learned counsel for the petitioner in support of this contention has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Peethani Suryanarayana & Anr. Vs. Repaka Venkata Ramana Kishore & Ors. 2009(3) Civil Court Cases 155 (S.C.), wherein the Hon'ble Supreme Court was pleased to lay down, that Court can allow the amendment when such amendment is bona fide and does not cause injustice to the other side and also does not affect the right accrued to the defendant. There can be no dispute with the proposition of law laid down by the Hon'ble Supreme Court in the case Peethani Suryanarayana & Anr. Vs. Repaka Venkata Ramana Kishore & Ors. (supra). A positive finding has been recorded by the learned trial Court, that the amendment sought was not bona fide and was an attempt to fill in lacuna, as the witness examined by the petitioner had not supported the case set up by the plaintiff / petitioner. C.R. No. 4928 of 2010 -4- ***** Furthermore, this amendment could not be allowed after the commencement of the trial. The Hon'ble Supreme Court in the case of Vidyabai & Ors. Vs. Padmalatha & Anr. 2009(1) R.C.R.(C) 763 has laid down, that Court does not have any jurisdiction to allow the amendment after the commencement of the trial, with regard to the facts which were in knowledge of the party, or could be known by due diligence. No ground for interference is made out. No merit. Dismissed. 09.08.2010 (VINOD K. SHARMA) 'sp' JUDGE