CR No. 5448 of 2006 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CR No. 5448 of 2006 Date of decision March 24, 2009 Sham Lal Nirwani and others ....... Petitioners Versus Shri Dile Singh and others ........Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. C.B. Goel, Advocate for the petitioners. Mr. Rakesh Gupta, Advocate. None for respondent No.39. **** 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? K. Kannan, J (oral) 1. The plaintiff who sought for amendment of his plaint seeking for inclusion of a reference to an item of property in Khasra No. 197/26(1- 6 ) that fell to be divided earlier in a partition deed was rejected by the Appellate Court on ground that it would require a de novo trial and that the plaintiff was not entitled to bring about an amendment of the Appellate Court. 2. Learned counsel for the respondent supports the order passed by the Appellate Court on the ground that it was not as if the plaintiff did not know about the existence of the partition deed or that there was any particular circumstance which was responsible for his omission to make a reference to the property in suit No. 179/76. The counsel further CR No. 5448 of 2006 2 contends that the trial Court had adverted to the defence made by him that the suit was bad for partial partition and that the plaintiff had deliberately concealed the existence of some other items which according to the plaintiff had already been partitioned. 3. A particular matter stands out that the amendment to the pleadings which is now sought for does not seek for inclusion of any item for property for partition but merely explains the effect of a partition that had already taken place in the year 1986 and that the present suit for partition was with reference to the remaining properties that stood undivided. The learned counsel for the respondent is in some way justified in saying that even this document cannot be received by the Appellate Court without subjecting the appellant-plaintiff to cross examine. It would be always possible for the defendant to establish that the partition effected in the year 1986 was complete in all respects and there was no other property to be divided. The document may not be received by the Appellate Court without any further proof and for rendering a complete adjudication, I direct that the amendment is ordered as prayed for, with liberty given to the contesting respondent before this Court to file an additional written statement and the Appellate Court shall also consider if the plaintiff states that the document of partition is already exhibited before the trial Court and he does not seek to lead any evidence, then, by virtue of the amended pleadings if the defendant seeks to elicit some facts from out of the documents by subjecting the plaintiff to cross examine, such permission shall be granted. It shall be open to the defendant to move an appropriate application for cross examination of the plaintiff with reference to the additional facts which are sought to be introduced in the plaint. 4. The Civil revision petition is accordingly allowed. The orders of the Court below are set aside on condition that the revision petitioner pays the contesting respondent costs of Rs. 5,000/- on or before CR No. 5448 of 2006 3 15.4.2009. The party shall appear before the Additional District Judge, Kaithal on 15.4.2009. (K. KANNAN) JUDGE March 24, 2009 archana