Civil Revision No. 40 of 2000 11.5.2010 Present:- Mr. Rajnish K.Lal, vice Mr. K.D.Sood, counsel for the petitioner. None for the respondents. The learned counsel appearing on behalf of the petitioner has stated that respondent No.11 has died and his name may be deleted. Prayer granted. The name of respondent No.11 is ordered to be struck off from the array of the respondents with all just exceptions. 2. The defendant No.3 has filed this revision against the order dated 20.11.1999 passed by the learned Sub Judge 1st Class, Ghumarwin in Civil Suit No. 126-1 of 1999 rejecting the application of defendants No.2 to 6 for amendment of written statement and counter- claim. 3. The brief facts are that one Bhagat Ram had filed a suit for declaration that he is owner in possession of Khasra No. 34/1 (old) measuring 7 biswas now comprised in Khasra No. 558/34/1 measuring 4 biswas and Khasra No. 559/34/1 measuring 3 biswas situated in Village Barota, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur, consequential relief of permanent prohibitory injunction was also prayed in the suit. 4. Bhagat Ram died during the pendency of the suit. The suit was contested by defendants No. 2 to 6 by filing written statement in which they took several preliminary objections. The stand of defendants No.2 to 6, in brief, is that Bhagat Ram was not owner of the suit land. The suit land was allotted to them in partition. The defendants No.2 to 6 filed a counter claim in the suit and prayed for - 2 - decree of possession of land measuring 1 biswa comprised in khasra No. 588/34/1 by dismantling structure raised on it by the plaintiff. In case the plaintiff takes forcible possession or defendants No.2 to 6 failed to prove their possession on the remaining suit land i.e. 4 biswas of the land which is mentioned by the plaintiff in the title of the plaint, then the decree of possession by dismantling any construction thereon. The plaintiff filed replication to the written statement and written statement to the counter claim of the defendants No. 2 to 6. The defendants also filed replication to the written statement in the counter claim. 5. It has been submitted by the learned counsel for the petitioner that the trial Court appointed Local Commissioner for demarcation of the land who visited the spot on 30.5.1998 and submitted his report. The defendants No.2 to 6 filed an application for amendment for incorporating para 3(a) in the written statement as follows:- “3-A. That the plaintiffs have forcibly constructed the house over the part of the Khasra No. 558/34/3 i.e. over the land measuring 4 biswas comprised in Khasra No. 34/3/1, 34/3/2, 34/3/3 which deserves to be demolished at the costs of the plaintiff and the possession of the vacant land be delivered to the replying defendants. In alternative if the plaintiff is not held entitled for the possession of land measuring 4 biswas, then the plaintiff is entitled to be recovered Rs. 2 lacs from the plaintiff which is the market price of the suit land. Further if the replying defendants are not held entitled for the aforesaid relief, then the replying defendants are entitled for the equal land of the same nature and value near the suit land and Khasra No. 34/3 measuring 1-17 has been allotted to Sh. Sunder in partition.” - 3 - In the amendment application the defendants No.2 to 6 also submitted for incorporation of para 3-A in the counter-claim as follows: “3-A. That the plaintiffs have forcibly constructed the house over the part of the Khasra No. 558/34/3 i.e. over the land measuring 4 biswas comprised in Khasra No. 34/3/1, 34/3/2, 34/3/3 which deserves to be demolished at the costs of the plaintiff and the possession of the vacant land be delivered to the replying defendants. In alternative if the plaintiff is not held entitled for the possession of land measuring 4 biswas, then the plaintiff is entitled to be recovered Rs. 2 lacs from the plaintiff which is the market price of the suit land. Further in alternative, if the replying defendants are not held entitled for the aforesaid relief, then the replying defendants are entitled for the equal land of the same nature and value near the suit land and Khasra No. 34/3 measuring 1-17 has been allotted to Sh. Sunder in partition.” 6. The application for amendment of the written statement and counter claim was opposed by plaintiff by filing reply. The learned Sub Judge dismissed the application on 20.11.1999 mainly on the ground of delay. 7. In the application for amendment of the written statement and counter claim, it has been stated that on 30.5.1998 the Local Commissioner visited the spot and it was found that the plaintiff had encroached by raising the construction over the land measuring 4 biswas comprised in Khasra No. 34/3/1, 34/3/2 and 34/3/3 which is the part of the Khasra No. 34/3 and re-numbered as 558/34/3. The khasra No. 558/34/3 has been allotted to the legal heirs of Sunder, who are defendants No.2 to 6. It has been submitted that in the written - 4 - statement inadvertently the area encroached upon by the plaintiff which belongs to defendants No.2 to 6 has been mentioned Khasra No. 558/34/1, whereas the same is Khasra Nos. 34/3/1, 34/3/2, 34/3/3. In these circumstances, the defendants No.2 to 6 have prayed for amendment of the written statement by adding para 3-A and amendment in counter claim by incorporating para 3-A. 8. The learned Sub Judge has observed that no plausible reason has been given by defendants No.2 to 6 for moving the application for amendment of the written statement and counter claim at belated stage. The defendants No. 2 to 6 in the amendment application have stated that though they have submitted in the written statement as well as in the counter claim regarding the encroachment made by the plaintiff. On 30.5.1998 when the Local Commissioner visited the spot, actual encroachment made by the plaintiff was revealed and immediately thereafter the application for amendment of the written statement and counter claim has been filed. The learned Sub Judge has not rejected the application that the plea of the defendants No.2 to 6 if allowed will change the nature of the suit or counter claim. No doubt, the application for amendment of the written statement and counter claim has been filed at belated stage, but the application for amendment can be filed at any stage. The suit was filed prior to present amendment carried out in Order 6 Rule 17 CPC. The rejection on the ground of delay can be compensated in terms of money. 9. In these circumstances, the impugned order is not sustainable and is accordingly set-aside, however, subject to payment of - 5 - Rs. 2000/- cost which shall be paid by the petitioner to the plaintiff in the Court below. The application for amendment filed by defendants No.2 to 6 is allowed. The petitioner through his counsel is directed to appear before the trial Court on 1.6.2010. The record of the court below be sent immediately so as to reach before the date fixed. May 11, 2010. ( Kuldip Singh ) (GR) Judge.