C. R. No. 1244 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 1244 of 2009 Date of Decision : March 16, 2010 Sanjeev Mohindra and others .... Petitioners Vs. Akshit (Minor) and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Amit Rawal, Advocate for the petitioners. Mr. Sanjeev Manrai, Advocate for respondent no. 1. None for respondent no. 2. * * * L. N. MITTAL, J. (Oral) : Defendants no.1 to 3 have filed the instant revision petition under Article 227 of the Constitution of India assailing order dated 15.01.2009 (Annexure P-5) passed by learned Civil Judge (Junior Division), Chandigarh, thereby allowing application for amendment of plaint moved by plaintiff-respondent no.1. Plaintiff is son of defendant no.2. Plaintiff filed suit seeking declaration that the disputed house is joint Hindu family property of the plaintiff and other legal heirs of the deceased Bratpal Mohindra including defendants no.1 to 3. Will dated 26.05.2006 allegedly executed by Bratpal C. R. No. 1244 of 2009 2 Mohindra regarding the disputed house in favour of defendant no.1 has also been challenged in the suit. Permanent injunction has also been claimed. Bratpal Mohindra was father of defendants no.1 to 3/petitioners. Relations between defendant no.2 and his wife (mother of minor plaintiff-respondent no.1) are said to be estranged. The plaintiff, by way of amendment, sought relief of possession of the suit property. The said amendment has been allowed by the trial court. I have heard learned counsel for the petitioners and perused the case file. Learned counsel for the petitioners vehemently contended that in view of proviso to Order 6 Rule 17 of the Code of Civil Procedure (in short – CPC), the proposed amendment could not have been allowed as the trial had already commenced. Learned counsel for the petitioner, in support of his contention, relied on a judgment of Hon'ble Supreme Court in the case of Vidyabai and others vs. Padmalatha and another reported as 2009 (1) R.C.R. (Civil) 763. On the other hand, learned counsel for respondent no.1 contended that amendment could not be disallowed merely on the ground of delay in filing the amendment application. Reliance in support of this contention has been placed on two judgments of Hon'ble Supreme Court namely Rajesh Kumar Aggarwal and others vs. K. K. Modi and others reported as 2006 (2) R.C.R. (Civil) 577 and Surender Kumar Sharma vs. Makhan Singh reported as 2009 (4) R.C.R. (Civil) 597. I have carefully considered the rival contentions. Order 6 Rule 17 CPC is reproduced hereunder :- “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 C. R. No. 1244 of 2009 3 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 : Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” In view of the aforesaid proviso, the amendment could not have been allowed after commencement of trial unless the plaintiff could not have raised the matter before commencement of trial inspite of due diligence. The main question that arises for determination is as to whether the trial has commenced in the suit or not. In the case of Vidyabai (supra), affidavit of examination-in-chief had been placed on record and therefore, the trial was deemed to have commenced in that case because evidence had commenced. In the instant case, however, after framing of issues, plaintiff-respondent no.1 did not lead any evidence inspite of availing many opportunities. Consequently, judgment in the case of Vidyabai (supra) cannot be said to be directly applicable to the facts of the case in hand. At the same time, judgment in the case of Surender Kumar Sharma (supra), cited by counsel for respondent no.1, is also not applicable because in that case , proviso to Order 6 Rule 17 CPC, which was introduced by Amendment Act of 2002, was not considered and interpreted. Judgment in the case of Rajesh Kumar Aggarwal (supra), cited by learned counsel for respondent no.1, is also not applicable because in that case, cause of action for seeking amendment arose during pendency of the suit itself. C. R. No. 1244 of 2009 4 In the instant case, issues were framed and the case was fixed for evidence of the plaintiff on many dates of hearing, but no evidence was led. In view thereof, the amendment of plaint allowed by the trial court is not liable to be set aside. The proposed amendment is essential for decision of the suit because without claiming relief of possession of the suit property, the suit for declaration and injunction alone could not have been maintainable and also would not have served any purpose. For the reasons recorded herein above, I find no merit in the instant revision petition, which is accordingly dismissed. March 16, 2010 ( L. N. MITTAL ) monika JUDGE