C.R.No.573 of 2010 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. C.R.No.573 of 2010 Date of decision: 28.1.2010 Khushi Ram .....Petitioner vs. Murli Manohar Thatheran Panchayati Mandir and Dharamsala Society ....Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.A.K.Gupta, Advocate, for the petitioner. -- Rakesh Kumar Garg,J. This is plaintiff's revision petition challenging the order dated 3.12.2009, passed by Civil Judge (Junior Division), Bhiwani, whereby his application seeking amendment in the plaint has been rejected. The petitioner filed a suit for permanent injunction restraining the defendants from breaking or blocking and from erecting a wall in the rear side of windows and ventilators existing in wall CD shown of the house in dispute shown by mark ABCD in red colour in the site plan attached with the plaint and also for restraining the defendants from blocking the rear side of street of his house and also from illegally raising construction in the rear side street and also from blocking the ingress of air,water and light into the house and also from doing any untowards act in any manner and also from interfering into peaceful residence of the plaintiff into the house on the basis of both kind of evidence oral as well as documentary. The suit was contested by the defendant-respondent. Issues were framed. C.R.No.573 of 2010 2 During the pendency of the above civil suit an amendment application under Order VI rule 17 of the Code of Civil Procedure,was moved whereby the following paragraphs were sought to be inserted in the plaint:- “13-A. That the defendants have during the pendency of the suit in spite of said order dated 20.11.2001 had constructed a wall towards house of plaintiff and obstructed both windows in the wall CD and have encroached the area of street and the 11 foot street behind these windows has also been closed by placing roof which the defendants are liable to remove. 13-B. That suit for mandatory injunction directing the defendants that they remove the Wall and open both the windows in the Wall and marked as CD and to remove the wall behind it and to vacate 11 foot area of street so the plaintiff get Air and Light from the said Windows.” The aforesaid application was filed to seek amendment to add plea and prayer for mandatory injunction to remove the wall allegedly constructed during the pendency of the suit. The application was contested and the same was rejected by the impugned order. Learned counsel for the petitioner has vehemently argued that as the amendment sought pertains to a subsequent event which occurred during the pendency of the suit, therefore, the same was necessarily required for the purpose of determining the real controversy between the parties, and in view of the settled proposition of law that where cause of action arises during the pendency of the suit, amendment of the pleadings can be allowed if nature of relief is changed but did not change the basic structure of the suit. It was further argued that rule of amendment is a rule of good C.R.No.573 of 2010 3 conscious and, therefore, the present amendment is necessary to avoid multiplicity of litigation and that the petitioner had undertaken that no further evidence is required to be led for the amendment sought and the same should have been allowed. I have heard the learned counsel for the petitioner and perused the impugned order. In the present case, the plaintiff had filed the suit for permanent injunction against the defendant in the year 2001. Now the plaintiff has alleged that his windows etc. had been obstructed and walls have been constructed by the respondents thereby encroaching the area of Gali and caused obstruction in air and light to the rooms of the petitioner. However, neither the date, month or year in which the alleged construction has been done has been mentioned, nor the date of knowledge is forthcoming. The trial Court while rejecting the prayer of the petitioner has also noticed that DW2 Badri Narain admitted in his cross examination during a suggestion given to him by the learned counsel for the plaintiff with regard to the blocking of the windows etc. by constructing a wall. Thus, the petitioner was having knowledge of this fact that a wall was constructed and the windows etc. had been blocked but no application for amendment was moved earlier than the examination of DW2 Badri Narain. Even thereafter, the evidence of the defendant was completed and the present application for amendment was only moved on 9.10.2009 at a belated stage. It has also been noticed by the trial court that the case was fixed for rebuttal evidence and the evidence of the defendant has already been closed, and thus the present application seems to have been filed to delay the proceedings. C.R.No.573 of 2010 4 Under Order VI rule 17 of the Code of Civil Procedure, no amendment can be allowed after the trial is commenced unless the Court comes to the conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. As noticed above, in the present case the amendment application was moved at the fag end of the case i.e., at the conclusion of the trial and the petitioner has failed to establish that despite due diligence, he could not move the amendment application earlier. There is no error in the jurisdiction of the trial Court in exercise of its powers. For the reasons recorded above, I find no merit in this revision petition and the same is accordingly dismissed. ( Rakesh Kumar Garg) Judge January 28, 2010 rk