IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R. NO.6175 OF 2008 DATE OF ORDER: 24.2.2009 Krishan Kumar ....Petitioner(s) Versus Rajmal and another ....Respondent(s) CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Ajay Jain, Advocate for the petitioner. Mr. Ashok Verma, Advocate for the respondents. JASWANT SINGH, J. Petitioner-plaintiff, by filing the present revision petition under Article 227 of the Constitution of India, has prayed for setting aside orders dated 17.9.2008 passed by the learned Civil Judge (Junior Division), Hisar whereby his application under Order 6 Rule 17 CPC for amendment of the plaint has been dismissed. The facts are that the petitioner-plaintiff filed a suit on 6.11.2006 for mandatory injunction seeking direction to the respondents- defendants to fill up the earth in the trench, which was dug up by them near/adjacent to the northern wall of the house of the plaintiff and further for permanent injunction restraining them not to dig any khai or to cause damage to the foundation of the house of the plaintiff, in any manner. Along with the suit, an injunction application under Order 39 Rules 1 & 2 CPC was also filed. Defendants-respondents appeared and contested the suit. The interim injunction application of the petitioner-plaintiff was dismissed and appeal filed against the same was allowed by the learned Appellate Court. In pursuance of the directions of the learned Appellate C.R. NO.6175 OF 2008 #2# Court, it is stated that the respondents-defendants have filled up the trench allegedly dug by them. It appears that when the case was fixed for replication and framing of issues, it was discovered that the trench/khai was dug by the defendants on the side adjacent to the eastern wall of the house of the petitioner-plaintiff instead of the northern wall of the house and due to a typographical error and the word “northern” wall was stated. Thus the prayer was made to substitute the word “eastern” in place of “northern”. A further prayer was made for inserting the relief of amount on account of damages suffered due to digging up of such trench/khai. Reply to the application by the defendants-respondents was filed. It was pleaded that the said mistake could not be a typing error. It was also stated that the additional plea is vague, uncertain, indefinite and cannot be allowed, at this stage as no reason has been given as to why these were not taken at the time of institution of the suit. Learned trial Court observed that the petitioner-plaintiff is estopped from raising the plea that actually the trench in question is towards the eastern side of the house in stead of already pleaded though, inadvertently, that the same existed towards the northern side of the house and the petitioner-plaintiff was not entitled to substitute the word “northern' with “eastern” side of the wall on the ground that even the Local Commissioner, in its report dated 9.12.2006, had reported that the trench/khai was dug by the defendants in the northern side of the house of the plaintiff, as also the same had been filled up by the respondents- defendants in compliance with the orders passed by the learned first Appellate Court. Learned trial Court further rejected the plea of damages C.R. NO.6175 OF 2008 #3# sought to be inserted in the relief clause by relying that in view of the material placed on record, the possibility of the cracks in the building of the plaintiff due to age and cheap construction, could not be ruled out. Thus, the application was dismissed vide impugned orders dated 17.9.2008. I have heard learned counsel for the parties and perused the case file. In my opinion, the present revision petition deserves to be allowed. It is not disputed that the suit for permanent injunction was filed on 2.11.2006 and the present application seeking amendment was filed on 12.6.2007 when the case was fixed for 26.7.2007 for replication and framing of issues. It is also not in dispute that in the site plan annexed with the plaint, the said trench/khai is shown to be on the eastern side of the house of the petitioner-plaintiff. It is also not disputed that in the written statement it had been stated that the site plan annexed with the plaint is not in consonance with the pleadings. A perusal of the site plan shows that the house of the respondents-defendants is adjoining the house of the petitioner-plaintiff on the eastern side only and, therefore, in my considered opinion, it was due to inadvertent mistake that the wrong description of the property in the plaint was given. The Local Commissioner has also not annexed any site plan with its report and it appears that the said Khai/trench exists on the northern side was recorded in the report keeping in view the averments in the plaint. Reliance is also placed by learned counsel for the petitioner on a judgment of Hon'ble Supreme Court reported as Usha Devi v. Rijwan Ahamd & Ors, 2008(1) RCR (Civil) 840, wherein, in a suit for permanent injunction, the wrong description of the property in plaint was permitted to C.R. NO.6175 OF 2008 #4# be amended even after two years of filing of the written statement subject to payment of Rs.10,000/- as costs as it was found that the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of the execution in the event of the plaintiff-appellant succeeding in the suit. Further reliance was placed on a recent decision in a judgment of Hon'ble Supreme Court reported as Rajkumar Gurawara (Dead) Thr LRs v. M/s S.K. Sarwagi & Co. Pvt Ltd and another 2008(4) RCR (Civil) 824, wherein it has been held that pre-trial amendments are to be allowed liberally so as to determine the real questions of controversy between the parties. On the other hand, learned counsel for the respondents- defendants relied on a decision of recent judgment of Hon'ble Supreme Court reported as Vidyabai & Ors v. Padmalatha & Anr 2009(1) RCR (Civil) 763 to contend that the amendment, in view of the proviso to Order 6 Rule 17 CPC, after the commencement of the trial, could not be permitted in the absence of due diligence being shown, which is couched in a mandatory form so it enjoins the party to show that in spite of due diligence, the said question could not be raised before the commencement of the trial. The law cited by learned counsel for the petitioner is fully applicable to the facts of the present case whereas the judgment relied upon by learned counsel for the respondents is clearly distinguishable as the present case is not of seeking amendment in the written statement. Moreover, in the present case, the application for amendment was made before framing of the issues and, therefore, it is of no help to the cause of C.R. NO.6175 OF 2008 #5# the respondents-defendants. As regards the prayer for amendment in the relief clause whereby damages have been sought on account of digging up of the said trench by the plaintiff-petitioner, I find the approach of the learned trial Court as wholly erroneous. The damages, if any and to what extent and for what reason, can only be ascertained after leading of evidence by both the parties. Learned trial Court while considering the application for amendment has virtually, at this stage, itself dismissed the suit for damages by recording a finding that “When the cracks were not there in the wall, which were just adjacent to the trench in question, the possibility of appearing some cracks in the house of the plaintiff due to the said trench does not arise. So far as the photographs placed on the file by the plaintiff at the time of arguments are concerned, the possibility of appearing of the cracks in the building of the plaintiff due to the age and or the cheap construction material used in the construction of the building cannot be ruled out.” In my opinion, this approach adopted by the learned trial Court is not sustainable. Therefore, in view of above, present revision petition is allowed and the impugned orders dated 17.9.2008 passed by the learned Civil Judge (Junior Division), Hisar are set aside and the application filed for amendment of the plaint is allowed. February 24, 2009 ( JASWANT SINGH ) manoj JUDGE