Civil Rev. 1138 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT, CHANDIGARH Civil Rev. 1138 of 2009 Date of decision: 14.7.2009 Nasib Kaur and another Petitioner vs Bhupinder Kaur and others Respondent Present Mr. Vijay Lath, Advocate Mr. BS Saini, Advocate M.M.S.BEDI,J. The defendants have filed this petition against order dated 8.1.2008 passed by the learned Civil Judge (J.D.) Roopnagar allowing the application for amendment filed by the plaintiff-respondent No.1. The plaintiff-respondent No 1 has filed a suit for declaration to the effect that she and defendants 1 to 4 are co-owners in equal share and in joint possession of the land in dispute and that the Will dated 10.7.2004 executed by her father in favour of Defendants 1 to 3 is null and void. She has also challenged the mutation etc. In the written statement filed by the defendants, it has been pleaded that the transfer of the property has been effected by defendant No.1 in favour of defendant No.2. The application under Order 6 Rule 17 CPC for amendment of the plaint has been allowed by the learned Civil Judge (J.D.), Roopnagar by making the following observations:- “ Perusal of the record shows that the factum of the execution of the said transfer deed has already come on record through the written statement filed by defendants 1 & 2. It is an Civil Rev. 1138 of 2009 2 admitted fact that defendant No.1 has given her share to defendant No.2 through the said transfer deed. Therefore, it is clear that if the proposed amendment is allowed, it would neither amount to changing the nature of the case nor it would lead to introduction of any new facts. Rather the amendment sought for, if allowed, it would render an “ element of completeness” to the suit in hand and the same is necessary for just and proper decision of the present suit. Moreover, till date no evidence has come on record and the harassment caused if any, to the defendants/respondents, can be well compensated by an award of costs. So in the interest of justice the present application stands allowed subject to payment of cots of Rs.500/-. Now case is adjourned to 4.2.2009 for payment of costs and for filing of amended plaint.” Learned counsel for the defendant- petitioners has vehemently argued that the issues were framed in this case by the trial court on 8.8.2007. He has submitted that the trial having already commenced, the defendants are to be examined and the documents of transfer already in the knowledge of the plaintiff-respondents, the trial court has acted illegally in permitting the amendment of the pleadings in contravention to the proviso of Order 6 Rule 17 C.P.C. He places reliance on Ajendraprasadji N Pande & Anr vs Swami Keshavprakeshdasji N. & Ors. 2007 (1) Civil Court Cases 500, to contend that under the amended provisions , no application for amendment shall be allowed after the trial has commenced, unless inspite of due diligence, the matter could not be raised before the commencement of the trial. I have heard learned counsel for the parties and gone through the facts and circumstances of this case. The spirit of Order 6 Rule 17 CPC Civil Rev. 1138 of 2009 3 cannot be ignored if for proper adjudication of the matter, the amendment is required, the same may be allowed. In the present case, the plaintiff wants to incorporate in her pleadings that defendant No.1 had given her share to defendant No.2 through a transfer deed. This fact is already existing in the written statement, which has come on the record. It is apparent that to determine the real question in controversy between the parties, the amendment is necessary. There is no dispute regarding the proposition of law laid down in Ajendraprasadji N. Pande's case (supra). No ground for interference is made out. Dismissed. July 14 ,2009 ( M.M.S.BEDI ) TSM JUDGE