C. R. No. 2979 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 2979 of 2010 Date of Decision : September 15, 2010 Upkar Singh .... Petitioner Vs. Harparkash Kaur and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Harsh Bunger, Advocate for the petitioner. Mr. Arihant Jain, Advocate for the respondents. * * * L. N. MITTAL, J. (Oral) : Plaintiff has filed the instant revision petition under Article 227 of the Constitution of India impugning order dated 29.04.2010 (Annexure P-6) passed by learned Additional Civil Judge (Senior Division), Sangrur, thereby dismissing plaintiff's application Annexure P-4 for amendment of plaint. Petitioner has filed suit against respondents, who are mother and two sisters of the petitioner. The petitioner has pleaded in his plaint Annexure P-1 that he is in possession of land measuring 15 bighas 19 biswas, which was owned by his late father Jagjit Singh and is also in C. R. No. 2979 of 2010 2 possession of 16 bighas 14 biswas land, which is owned by defendant no.1. The petitioner sought permanent injunction restraining the defendants from dispossessing the plaintiff from the suit land. Petitioner moved application Annexure P-4 for amendment of the plaint to plead that in Hari 2004, family settlement took place between the plaintiff and defendant no.1, wherein property described in head note `A' of the plaint had fallen to the share of the plaintiff, whereas cash and jewellery had fallen to the share of defendant no.1 and possession of the suit property was handed over to the plaintiff, whereas cash and jewellery was handed over to defendant no.1and memorandum of family settlement reduced into writing on 02.06.2006 was signed by plaintiff and defendant no.1. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioner emphatically contended that in replication, which is also part of the pleadings, the petitioner has already pleaded that he is absolute owner of the suit land and by amendment of plaint, the petitioner only wants to elucidate as to how he became owner of the suit land. On the other hand, learned counsel for the respondents contended that suit was filed on 19.06.2006 and written statement was filed on 28.06.2006 and thereafter, amendment of plaint was allowed on 08.08.2006 and then issues were framed on 06.09.2006, whereas C. R. No. 2979 of 2010 3 application (Annexure P-4) for amendment of plaint was moved on 29.04.2008 i.e. long after the commencement of trial and therefore, proposed amendment could not be allowed. It was also contended that the proposed amendment of plaint would change the very nature of the suit. I have carefully considered the rival contentions. In view of proviso to Order 6 Rule 17 of the Code of Civil Procedure, amendment of plaint cannot be allowed after commencement of trial, unless the party seeking amendment depicts that in spite of due diligence, the matter could not have been raised before commencement of trial. In the instant case, it is not even the assertion of the plaintiff that he could not raise this plea before commencement of trial in spite of due diligence. Consequently, proposed amendment of plaint cannot be allowed in view of aforesaid mandatory provision. In addition to the aforesaid, plaintiff in the plaint has himself pleaded that suit land measuring 15 bighas 19 biswas was owned by his late father Jagjit Singh. Consequently, plaintiff and defendants being natural heirs would have inherited the same even if the Will set up by the defendants is ignored and therefore, plaintiff could not be exclusive owner of the suit land in view of his own assertion in the plaint. Similarly, the remaining suit land being 16 bighas 14 biswas, as pleaded in the plaint, is owned by defendant no.1. Consequently, the plaintiff could not be owner of the said land. It is thus apparent that the proposed amendment is in conflict with the pleadings in the plaint and the plaintiff wants to make out a new C. R. No. 2979 of 2010 4 case by amendment of plaint and wants to resile from the admission already made in the plaint. Consequently, such amendment cannot be permitted. It is also worth mentioning that there are two pieces of land regarding which the suit has been filed. One piece of land is measuring 15 bighas 19 biswas, which was previously owned by Jagjit Singh – father of plaintiff and defendants no. 2 and 3 and husband of defendant no.1, whereas the other piece of land is measuring 16 bighas 14 biswas, which is owned by defendant no.1. In the amendment application, the plaintiff has referred to family settlement relating to property described in head note `A' of the plaint, but there is no head note `A' in the plaint Annexure P-1. It is not clear from the amendment application as to regarding which of the two pieces of land mentioned above, the proposed amendment is sought by the plaintiff. For this added reason as well, the proposed amendment cannot be allowed. In view of the aforesaid discussion, I find no illegality in the impugned order of the trial court. Application for amendment of plaint moved by the plaintiff has been rightly dismissed by the trial court. The revision petition is devoid of any merit and is accordingly dismissed. September 15, 2010 ( L. N. MITTAL ) monika JUDGE