Civil Revision No. 4832 of 2010 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4832 of 2010 Date of Decision: October 18th, 2011 Krishan Lal .... Petitioner Versus Shri Ved Parkash and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. Deepak Sibal, Advocate, for the petitioner. Mr. Shiv Kumar, Advocate, for respondents No. 1 and 2. VIJENDER SINGH MALIK, J. This is plaintiff's revision petition brought under the provisions of Article 227 of the Constitution of India for setting aside the order dated 25.5.2010 passed by Additional District Judge, Faridabad, vide which the application of the plaintiff- appellant filed under Order 6 Rule 17 read with section 151 of Code of Civil Procedure for amendment of the plaint, has been dismissed. To grasp the brief history of the proceedings, it is necessary to mention the following facts. The plaintiff has filed a suit for declaration to the effect that he is owner in possession of house No. 1F-105 measuring 233 Civil Revision No. 4832 of 2010 2 .. square yards, NH-1 Faridabad on the basis of a family settlement dated 18.9.1998. Defendants No.1 and 2 challenged this claim of the plaintiff by filing the written statement. They have denied the family settlement dated 18.9.1998. They have claimed that defendant No.1 is in possession of specific portion of a part of the suit property. Defendants No. 3 to 6, the sisters of the plaintiff and defendants No.1 and 2, had made statement on oath admitting the family settlement dated 18.9.1998 and the claim of the plaintiff to the house in question. While filing replication, the plaintiff denied defendants No.1 and 2 being in joint possession of the house in question. The parties went to trial on various issues. The suit has been decided vide judgment and decree dated 31.7.2008. Learned trial court upheld the claim of the plaintiff of ownership over the suit property. However, on finding that his possession over the house in question is not exclusive, his suit for declaration simpliciter has been held not maintainable and has been dismissed. Both the plaintiff and defendant Nos. 1 and 2 went in appeal against this judgment and decree. Before the Additional District Judge, Faridabad, the plaintiff filed an application for amendment of the plaint in which he sought to amend the title of the plaint as well as specify the nature of the possession of defendant No.1 over a portion of the house in question and to add the relief of possession of the suit property. The application has been opposed by defendants No.1 Civil Revision No. 4832 of 2010 3 .. and 2 claiming the same to be not maintainable. According to them, the plaintiff had filed suit for declaration alleging himself to be owner in possession of the suit property. It is further alleged that the appellant, Krishan Lal, had admitted while appearing in the witness box that defendant No.1 is in part possession of the suit property. It is averred that the plaintiff continued with the suit for six years in the face of averments of the defendants that the suit is not maintainable. It is averred that once verdict of the court has come against the appellant, he cannot be allowed to change the entire shape of the suit. It is averred that character and nature of the suit would be changed if the application was allowed and prejudice would be caused to the answering respondents. Strangely enough, respondents No. 3 to 6 have also opposed the application claiming the same to be not maintainable. It is averred by them that by dismissal of the suit, valuable right had accrued to the respondents which cannot be taken away by the amendment. It is further averred that under the amended provision of Order 6 Rule 17 CPC, the application for amendment could not be allowed after framing of the issues. Hearing learned counsel for the parties, learned Additional District Judge, Faridabad has dismissed the application vide the impugned order. Aggrieved by the aforesaid order, the present revision petition has been filed. I have heard Mr. Deepak Sibal, learned counsel for the Civil Revision No. 4832 of 2010 4 .. petitioner and Mr. Shiv Kumar, learned counsel for respondents No. 1 and 2 and have gone through the record. Learned counsel for the petitioner has taken me through the last paragraph of the impugned order where after noticing some decisions cited by learned counsel for the plaintiff-appellant, learned Additional District Judge has observed that there was no dispute regarding the law laid down in those authorities. Learned Additional District Judge has further observed that there was no dispute about the proposition of law that application for amendment cannot be dismissed on the ground that it has been moved at a belated stage. Learned Additional District Judge further agreed with the proposition of law that the court should see that the amendment of pleadings, if allowed should advance cause of justice. After agreeing on the aforesaid proposition of law, learned Additional District Judge has mentioned that the plaintiff could have moved the application for amendment before settlement of issues when defendants No.1 and 2 had taken the specific plea that defendant No.1 was in possession of the suit property. Thus, for this simple reason, the application has been dismissed. Learned counsel for the petitioner has submitted that once learned Additional District Judge has agreed on the principles that amendment could be allowed at belated stage and the prime consideration in allowing or dismissing the application for amendment is advancement of cause of justice, the application could not be dismissed for the reason that it could have been Civil Revision No. 4832 of 2010 5 .. moved before settlement of issues as the plea had been taken on behalf of the defendants that defendant No.1 was in possession of the suit property. According to him, the application has, therefore, been dismissed on mere technicalities. Learned counsel for the petitioner has further submitted that the plaintiff has been found by learned trial court to be owner of the house in question under the family settlement dated 18.9.1998. According to him, the suit is dismissed because he is not in exclusive possession of the house in question and, therefore, in the absence of relief of possession, suit for mere declaration is held not maintainable and has been dismissed. According to him, this dismissal of the suit does not preclude the plaintiff from bringing a fresh suit for possession of the house in question. According to him, if he has a right to bring a suit for possession, he can be allowed to amend the plaint suitably to seek said relief in this suit itself. According to him, this would avoid multiplicity of suits. He has further submitted that the amendment, if allowed, would promote ends of justice and it deserves to be allowed. Learned counsel for the petitioner has cited before me a decision of Hon`ble Supreme Court of India in Rajesh Kumar Aggarwal and others Vs. K.K.Modi and others (2006) 4 Supreme Court Cases 385, where it is laid down that the courts should allow amendment that may be necessary for determining the real question in controversy between the parties. However, it has been laid down as an exception to the aforesaid rule that it Civil Revision No. 4832 of 2010 6 .. should not cause injustice or prejudice to the other side. On the other hand, learned counsel for respondents No. 1 and 2 has submitted that defendants No.1 and 2 had mentioned in the written statement that defendant No.1 is in possession of specific portion of the house in question. According to him, despite this plea having been taken by defendants No.1 and 2, the plaintiff did not amend his plaint to incorporate the relief of possession and when the suit for declaration simpliciter has been found not maintainable and is dismissed, valuable right has accrued to the defendants and they cannot be deprived of that right by allowing the amendment. According to him, the plaint should not be allowed to be amended at a belated stage. He has further submitted that if the suit is dismissed on some ground, the same cannot be permitted to be amended at the stage of appeal. In support of his submissions, he has cited before me two cases reported as Ashok Kumar s/o Bulchand Kaurani and others Vs. Shri Shankar s/o Vishnu Reverkar and Ors. 2008 (1) ICC 836 and Hans Raj Vs. Savitri Devi and others 1986 (1) PLR 524. He has also cited Vinay Krishna Vs. Keshav Chandra and another AIR 1993 Supreme Court 957, where suit was filed for declaration of share in property and the plaintiff was not in exclusive possession of the property because two other persons and some tenants were in occupation. The plaintiff had failed to claim relief of possession. In the face of these facts, it has been held that discretion of court in Civil Revision No. 4832 of 2010 7 .. granting decree for declaration is barred. Another case is cited before me in Ramesh Naru and others Vs. Gulshan Rai Malikand Ors, 1987 PLJ 472, where it is laid down that a strong case is required to be made out for seeking amendment of pleadings and for the reasons that no explanation as to why proposed amendment could not be sought in trial court and amendment if allowed would reopen the whole matter, the amendment was declined. It is a case where the plaintiff has been held to be owner of the house in question under the family settlement dated 18.9.1998. For the reason that he was not in possession of the house to the exclusion of defendant No.1, his suit has been dismissed. It is not a case where the plaintiff is not in possession of the house in question. He is in possession thereof. He has pleaded in the reply to the plea of defendants No. 1 and 2 that defendant No.1 is in possession of specific portion of the house in question and that he is occupying that portion as a licensee after the family settlement. So, the plaintiff is in actual possession of some portion of the house in question with some of its portion being in possession of defendant No.1. For this reason, he has not sought the relief of possession of portion in possession of defendant No.1. If the finding of the trial court of the plaintiff being owner of house in question is upheld, the plaintiff can file a suit for possession subject to the law of limitation. That would just lead to multiplicity of the suits. If the amendment sought by the plaintiff to Civil Revision No. 4832 of 2010 8 .. the plaint is allowed, the defendants would be given an opportunity to file written statement thereto and they can take the plea of limitation, if any, as also any other plea available to them. It cannot be denied that amendment of the plaint does not change the cause of action with the plaintiff for filing the suit. No right seems to have accrued to the defendants, which may be taken away from them by way of this amendment. The amendment would definitely serve the ends of justice. In these circumstances, the impugned order cannot be sustained. The revision petition is accordingly allowed and setting aside the impugned order, the amendment of the plaint is allowed subject to payment of Rs.5,000/- as costs. (VIJENDER SINGH MALIK) JUDGE October 18th, 2011 som