Civil Revision No.934 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.934 of 2011 Date of Decision: February 09, 2011 Raj Kumar .......Petitioner Versus Shankar Lal and others .......Respondents CORAM:- HON'BLE MR. JUSTICE RAM CHAND GUPTA Present: Mr.Raj Mohan Singh, Advocate for the petitioner. <><><> RAM CHAND GUPTA, J.(Oral) The present revision petition has been filed under Article 227 of the Constitution of India for quashing the order dated 24.1.2011, Annexure P5, passed by the learned Additional Civil Judge (Senior Division), Rajpura dismissing the application under Order 6 Rule 17 of the Code of Civil Procedure (hereinafter to be referred as “the Code”) for amendment of plaint moved by the plaintiff. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court. Brief facts relevant for the decision of the present revision petition are that a suit for declaration was filed that plaintiffs are owners in possession to the extent of ½ share of House No.1629 situated in Rajpura Civil Revision No.934 of 2011 -2- town, District Patiala and that judgment and decree dated 24.2.1981 passed in civil suit No.29 of 19.1.1981 by Shri O.P.Garg, the then Sub Judge Ist Class, Rajpura titled as “Raj Kumar and others v. Sohara Ram and the will dated 3.9.1990 executed by Suhara Ram son of Shama Ram in favour of defendant No.1 are illegal, null and void and the same are not binding on the plaintiffs with a further relief of possession by way of partition of House No.1629, situated in Rajpura Town to the extent of ½ share and the consequential relief for permanent injunction restraining defendant No.1 from selling, alienating or in any manner changing the nature of the house in question by way of making any addition, alteration or raising any type of construction. Suit was contested by the respondent-defendants. Issues were framed. Evidence was adduced by both the parties. When the present application for amendment of plaint under Order 6 Rule 17 of the Code was filed, it was contested by respondent-defendants and after hearing learned counsel for the parties, the same was dismissed by the learned trial Court by observing as under: “After perusing the file meticulously and hearing the respective submissions of both counsel for the parties, this court agrees with the contentions of counsel for respondents/plaintiffs and is of the opinion that present application is devoid of merit and liable to be dismissed. Perusal of plaint shows that suit property was allotted to Shama Ram father of Suhara Ram and after the death of Shama Ram, Suhara Ram inherited the property. Now, applicant/plaintiff wants to take the plea that property was allotted to Shama Ram father of plaintiff in lieu of property left by him in West Pakistan which is totally an inconsistent plea. Parties to the suit have led their respective evidence and case is pending Civil Revision No.934 of 2011 -3- since 14.3.2000. Issues in this case were framed on 5.12.2005 and evidence of plaintiff was closed by order by the Predecessor of this Court on 19.5.2005. Therefore, it appears that now by way of present amendment applicant/plaintiff wants to re-open the trial of the case which is not permissible under the provision of law. Moreover, plaintiff has sought the amendment which would change the nature of the suit. Accordingly, present application stands dismissed. Now, to come up on 1.2.2011 for rebuttal evidence of plaintiff and arguments.” It has been contended by the learned counsel for the petitioner that the amendment is only explanatory and the same would not change the nature of the suit. It is pertinent to re-produce Order 6 Rule 17 of the Code, which reads as under: “17. Amendment of pleadings – The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial” Law is well settled by Hon'ble Apex court in Vidyabai and others v. Padamalatha and another, 2009(1) Recent Civil Reports (Civil) 763, that plaintiff has no right to file application for amendment of plaint after the commencement of trial, unless he is able to show that in spite of due diligence, he could not raise the matter before the Civil Revision No.934 of 2011 -4- commencement of trial. In the present case, the case of petitioner-plaintiffs as per the plaint is that “the house property was allotted to Shama Ram, father of Suhara Ram and after the death of Shama Ram, Suhara Ram inherited the suit property from his father”. By way of amendment in the plaint, the petitioner wanted to replace the aforesaid line with “the suit property was allotted in lieu of the properties left by Shri Shama Ram, the father of Suhara Ram in lieu of the properties left by Shri Shama Ram, the father of Suhara Ram in West Pakistan and Suhara Ram has got the said property on the death of Shama Ram, his father as the same was allotted to Shama Ram in lieu of the properties left by him in West Pakistan.” It has also been observed by the learned trial Court that Issues in this case were framed as far back as on 5.12.2005. Several opportunities were availed by the petitioner-plaintiffs to lead evidence and the evidence of the petitioner- plaintiffs was closed vide order of the Court on 19.5.2005. In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order and that grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. There is no merit in the present revision petition. The same is hereby dismissed. ( RAM CHAND GUPTA ) February 09, 2011 JUDGE SRM Note: Whether to be referred to reporter ? Yes/No