Civil Revision No.8500 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.8500 of 2010(O&M) Date of Decision: July 20, 2011 Gurmit Singh .....Petitioner v. Iqbal Singh and another .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Sarwan Singh, Sr. Advocate with Mr.N.S.Rapri, Advocate for the petitioner. Mr.Harsh Bunger, Advocate for the respondents. ........ RAM CHAND GUPTA, J. C.M.Nos.10229-30-CII of 2011 Requests for placing on record Annexure R1. The same is allowed subject to all just exceptions. Both the applications stand disposed of accordingly. C.R.No.8500 of 2010 The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 1.12.2010, passed by learned Civil Judge, Senior Division, Jalandhar, vide which application filed by petitioner-defendant for amendment of written statement was dismissed. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court. Facts relevant for the decision of present revision petition are Civil Revision No.8500 of 2010(O&M) -2- that a suit for possession by way of partition by metes and bounds of the land in dispute comprised in khasra no.246 was filed by respondents- plaintiffs against present petitioner-defendant by taking the plea that father of plaintiffs was owner in possession of 1/3rd share of the said property, which was transferred in their favour and, however, defendant tried to interfere in their possession and hence, the present suit. Present petitioner-defendant has taken the plea that neither Gian Singh nor present respondents-plaintiffs are having any right in the suit land and rather there was oral family partition effected by Gian Singh, father of Kehar Singh, Gurmit Singh and Sher Singh and according to that the property comprised in khasra no.246 was given to Gurmit Singh- defendant and Sher Singh, while the ancestral house measuring 4-M and Haveli measuring about 6 marlas was given to Kehar Singh. It has also been mentioned that Kehar Singh is also in possession of another property comprising of Khasra nos.135/1(0-1), 163(0-1) and 387/1/1 (0-3). It has also been contended that earlier as well suit was filed by Kehar Singh, which was dismissed. Issues were framed by learned trial Court. Evidence of the plaintiffs was recorded. Case was fixed for evidence of defendant, when the present application for amendment of written statement was filed. Petitioner-defendant has sought two amendments. First amendment is that suit filed by Kehar Singh was got dismissed by him as ad interim injunction order was not granted to him by the Court. Another amendment has been sought to the effect that residential house, a Haveli and the property in dispute were owned by Gian Singh besides the property comprising in Khasra no.135/1(0-1), 163(0-1), 387/1 (0-3) and the said properties had devolved upon Kehar Singh, father of plaintiffs, defendant and Sher Singh Civil Revision No.8500 of 2010(O&M) -3- and that all the said properties have not been included in the present suit and hence, suit is bad for partial partition. Application was contested by respondents-plaintiffs. Learned trial Court dismissed the said application, mainly, on the ground that the same was filed at a belated stage when the case was fixed for evidence of defendant and the same would amount to reopening of the case. It has been contended by learned counsel for the petitioner- defendant that defendant is having right to demolish the case of the respondents-plaintiffs on any possible available legal ground. It is further contended that moreover amendments are explanatory in nature and are legal. It has been contended that in a suit for partition all the properties jointly owned by the parties are to be included and, however, as some of the properties have been left by respondents-plaintiffs, hence amendment is necessary. He has also placed reliance upon State of A.P. and others v. M/s. Pioneer Builders, A.P., AIR 2007 Supreme Court 113. On the other hand, it has been contended by learned counsel for the respondents-plaintiffs that application for amendment filed by petitioner-defendant is self contradictory as on the one hand it has been pleaded that oral family settlement taken place and on the other hand plea of partial partition is being taken. Hence, it is contended that amendment is not at all necessary. It is pertinent to reproduce relevant paragraph of judgment rendered by Hon'ble Apex Court in M/s.Pioneer Builders' case (supra), on which reliance has been placed by learned counsel for the petitioner- defendant. “20. Principles governing amendment of pleadings are Civil Revision No.8500 of 2010(O&M) -4- well-settled. Order VI Rule 17 C.P.C. deals with the amendment of pleadings and provides that the Court may at any stage of the proceedings allow either party to alter or amend pleadings in such a 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 questions in controversy between the parties. It is trite that though an amendment cannot be claimed as a matter of right under all circumstances, yet the power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice. It is equally well-settled that unless serious injustice or irreparable loss is likely to be caused to the other side, the Court should adopt liberal approach and not a hyper- technical approach particularly in a case where the other side can be compensated with costs. Dominant object to allow the amendment in the pleadings liberally is to avoid multiplicity of proceedings (See: L.J. Leach & Co. Ltd. & Anr. Vs. M/s. Jardine Skinner & Co. , Smt. Ganga Bai Vs. Vijay Kumar & Ors. and B.K. Narayana Pillai Vs. Parmeswaran Pillai & Anr. Nevertheless, one distinct cause of action cannot be substituted for another nor the subject-matter of the suit can be changed by means of an amendment. The following passage from the decision of the Privy Council in Ma Shwe Mya Vs. Maung Mo Hnaung, succinctly summarises the principle which may Civil Revision No.8500 of 2010(O&M) -5- be kept in mind while dealing with the prayer for amendment of the pleadings: "All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit." As already discussed above, the amendment sought to be made in the written statement by petitioner-defendant are legal one and the same are only explanatory in nature. Law is well settled that defendant is having right to take any legal plea to demolish the case of plaintiffs. Petitioner- defendant had taken the plea of oral partition having been effected by Gian Singh, father of present petitioner and grand father of respondents-plaintiffs and now he wants to take the plea that in any case suit for partition filed by respondents-plaintiffs is also bad for partial partition as the other properties which were given to father of respondents-plaintiffs in the said oral family partition have not been included in the present suit. The plea being a legal one can be permitted to be taken by way of amendment. Plea is necessary for deciding the controversy in dispute between the parties. So far as the fact that the application was filed at a belated stage thereby causing delay in the disposal of the case filed by respondents- plaintiffs is concerned, the other party can be compensated by way of cost. Civil Revision No.8500 of 2010(O&M) -6- Hence, in my view, on these facts, learned trial Court has committed illegality and material irregularity in passing the impugned order refusing prayer of petitioner-defendant to amend the written statement. Hence, the present revision petition is accepted. Impugned order is set aside and the application filed by petitioner-defendant to amend the written statement is hereby allowed subject to payment of `10,000/- as cost, which shall be a condition precedent. 20.7.2011 (Ram Chand Gupta) meenu Judge