Civil Revision No.90 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.90 of 2009 Date of decision:- 16.01.2009. Sukhdev Singh and others ...Petitioners Versus Hakam Singh and another ...Respondents CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present:- Mr. Malkeet Singh, Advocate for the petitioners. JASWANT SINGH J. The petitioners have filed the present revision petition under Article 227 of the Constitution of India for setting aside the impugned order dated 28.08.2008 (Annexure P-1) passed by learned Civil Judge (Senior Division) Sangrur vide which the application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint as well as for amendment of the written statement in a counter claim has been rejected by way of common order. The facts giving rise to the matter in controversy are as under:- The petitioners-plaintiffs have filed a civil suit No.41 instituted on 26.02.2004 for permanent injunction restraining the defendants from dispossessing and interfering in their peaceful possession on the suit land comprised in Khewat No.22, Khatauni No.51 situated in Village Rajpura according to the jamabandi for the year 1999-2000, forcibly and without due course of law. After notice, defendants-respondents appeared and filed their Civil Revision No.90 of 2009 -2- written statement and have denied the ownership of the plaintiffs-petitioners and defendant No.3 has rather filed a counter claim for possession of the suit land. Faced with this situation, the plaintiffs-petitioners have filed an application dated 15.01.2008 (Annexure P-2) for amendment of the suit land and the amendment, which was sought to be incorporated as disclosed in para No.4 of the application is as under:- “(a) That after the existing head note of the plaint, the following head note is also to be added:- “Further, suit for declaration to the effect that the revenue entries showing tale defendants No.2 and 3 as owners of the land mentioned in the above head note of plaint, mutation land mentioned in the above head note of the plaint, mutation No.900 vide which the defendants No.2 and 3 allegedly succeeded . It alleged share of Santi, mutation No.1020 villa which the alleged share of Bachan Singh has been shown to have passed on the defendants No.2 and 3 and the alleged decree dated 02.01.2003 passed by the then Court of Sub Judge Ist Class, Sangrur in suit titled as Hakam Singh etc. vs. Bachan Singh are wrong, illegal, unauthorized, null and void and the same passed no title in respect of the suit land in favour of the defendants No.2 and 3 and have got no effect on the rights, title and interest of the plaintiffs regarding the sort land and the plaintiffs are the owners in possession Civil Revision No.90 of 2009 -3- of the same. (b) That in the para No.1 of the plaint; in its end the following words are to be added:- “However, in the revenue record, Bachan Singh and Said were shown to be owners of the suit land alongwith some other land to the extent of ½ share each previously.” (c) That in para No.4 of the plaint, in Lend, the following is to be added:- “the possession of the plaintiffs and previously Bhajan Singh as owners as mentioned in this para was in the knowledge of Santi, Bachan Singh alongwith the defendant. (d) That after para 4, the following para 4-A is to be added:- “That in the jamabandi for the year 1984-85, Saab and Bachan Singh have been wrongly shown as owners in possession of the suit bad alongwith other land of which they might be the owners and the alleged share of Sand is shown to have been mutated in favour of defendants No.2 and 3 vide mutation No.900. Further, in the jamabandi for the year 1989-90, the alleged share of Bachan Singh is shown to have been mutated in favour of defendants No.2 and 3 vide mutation No.1020. The said mutation is shown to have been entered Civil Revision No.90 of 2009 -4- and sanctioned on the basis of alleged decree dated 02.01.1993 passed in the suit fully mentioned in the head note of the plaint. The above mentioned decree, mutation and revenue entries regarding suit land in favour of the defendants No.2 and 3 are wrong, illegal, unauthorized, null and void and the same passed no title in respect of the suit land in favour of the defendants No.2 and 3 and have got no effect on the rights, title and interest of the plaintiffs regarding the suit land. The sale of suit land by the defendants No.1 and 2 with the consent of Bachan Singh was in the knowledge of the above said Santi, Bachan Singh, Hakam Singh and Hardev Singh.” (e) That in para No.10 of the plaint, in its end, the following words are required to be added:- “Further valuation of the suit land for the relief of declaration for the purpose of jurisdiction and Court fee is fixed at Rs.1295/- on which, the Court fee of Rs.20/- is also paid. (f) That in the prayer clause, after the words against the defendants and before the words “any other relief”, the following words are to be added:- “Further decree for declaration to the effect that the revenue entries showing the defendants No.2 and 3 as owners of the land, mutation No.900, mutation Civil Revision No.90 of 2009 -5- No.1020 and the alleged decree dated 02.01.2003 mentioned above in the head note of the plaint vide which the alleged shares of Sand and Bachan Singh are shown to have been passed in favour of the defendants No.2 and 3 are wrong, illegal, unauthorized, null and void and the same passed no title in respect of suit land in favour of the defendants No.2 and 3 and have got no effect on the rights, title and interest of the plaintiffs regarding the suit land and the plaintiffs are the owners in possession of the same may kindly be passed in favour of the plaintiffs and against the defendants with costs. The defendants-respondents filed the reply to the application for amendment and vehemently opposed the amendment sought to be incorporated by the petitioners-plaintiffs on the ground that it will change the whole nature of the suit and the pleas are contradictory to the stand taken by the plaintiffs in their plaint and which is not permissible in view of the provisions of Order 6 Rule 17 of the Code of Civil Procedure. Admittedly and undisputedly the suit filed by the petitioners-plaintiffs is for permanent injunction for restraining the defendants-respondents from interfering in their peaceful possession over the suit property. In the written statement filed by the defendants-respondents it has been specifically submitted that the defendants No.1 and 2 with the consent of Bachan Singh never sold the suit land to Bhajan Singh son of Maingal Singh on 03.04.1967 for an amount of Rs.260/-. It is further submitted that no Civil Revision No.90 of 2009 -6- possession of the suit land was handed over to the said Bhajan Singh as owner. It is also denied that Bachan Singh never remained in possession of the suit land as owner. It is further alleged that Bachan Singh was exclusive owner in possession of the suit land till he suffered a decree dated 02.01.1993 in faovur of defendants No.2 and 3 regarding the suit land and in pursuance thereof they (defendants No.2 and 3) are continuing as owner in possession of suit land and the plaintiffs-petitioners or their predecessor in interest had no concern with the same. By way of the application dated 15.01.2008 (Annexure P-2), the plaintiffs-petitioners not only wish to change the entire nature of the suit but also changing the entire plaint by seeking relief of declaration to the extent that the alleged judgment and decree dated 02.01.1993 and consequent mutations No.900 and 1020 vide which the share of Bachan Singh shown to have been transferred to defendants No.2 and 3 are not sustainable being illegal and void. Therefore,if the present application for amendment is allowed, then the entire plaint will be replaced and that will change the whole controversy that will run counter to the pleas raised by the plaintiffs in their suit. Learned Trial Court has rightly exercised the discretion while declining the application for amendment by relying upon judgment of this Court in Ashwani Kumar Aggarwal v. Shanti Lal, 2008(2)RCR (Civil) 452 in which it has been held that party cannot be allowed to change the cause of action and the basic nature of the suit or an inconsistent plea can be allowed to be added by way of amendment. In view of the above discussions, this Court does not find any perversity in the order dated 28.08.2008 (Annexure P-1) passed by the learned Trial Court while declining the application for amendment of the Civil Revision No.90 of 2009 -7- plaintiffs-petitioners. No ground to interfere under Article 227 of the Constitution of India is made out. However, before parting with the order, it is made clear that liberty is granted to the plaintiffs-petitioners, if they choose so, to file a separate suit for declaration before the competent Court in accordance with law. Dismissed. January 16, 2009 (JASWANT SINGH) vj JUDGE