CR No. 2538 of 2010 0-1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 2538 of 2010 Date of decision:- 17.8.2010 Jarnail Singh ......petitioner vs. Sohan Singh and others ......respondents CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA Present: - Mr. Sarju Puri, Advocate for the petitioner Mr. Malhar Singh Dhami, Advocate for respondent Nos. 2, 3 and 6. HEMANT GUPTA, J (ORAL) Challenge in the present revision petition is to the order passed by the learned trial Court on 5.3.2010 whereby an application for amendment of the plaint has been dismissed. Plaintiff-petitioner filed a suit for declaration to the effect that he is owner of land, on the basis of agreement of exchange dated 15.6.1989 executed by defendant No. 1 Sohan Singh in favour of Gurbax Singh. The plaintiff further challenged the Mutation numbers 927, 931, 968 and 970 being wrong, illegal, null and void and the same are liable to be corrected in the name of the plaintiff- petitioner on the basis of the agreement dated 15.6.1989. It is pleaded in the plaint that the plaintiff-petitioner is the owner in possession of the land measuring 7 marlas 6 sarsahi being 1/5th share of the land measuring 1 kanal 17 marlas at village Jagatpur, Tehsil Balachaur, District Nawanshahar, Swarn Kaur, the daughter of Manso has been impleaded as defendant CR No. 2538 of 2010 0-2- No. 5 after the death of Manso. It is alleged that Manso has also executed the said agreement dated 15.6.1989, but the mutation was not sanctioned. After filing of the written statement by the defendant on 12.6.2007, the issues were framed on 17.9.2007. Thereafter, the case was fixed for evidence. Plaintiff availed many opportunities for leading evidence but subsequently, an application for amendment was filed somewhere in the year 2008. The same was declined by the learned trial Court by the order impugned in the present petition. It has been found by the learned trial Court that by virtue of the amendment, the plaintiff wishes to enlarge the scope of the suit by claiming relief in respect of 14 marls 6 sarsahi; that earlier plaintiff did not claim joint possession; now he wants to add the relief of joint possession as well; that earlier, the factum of Will dated 21.3.1994 was not pleaded. Having heard learned counsel for the parties at some length I am of the opinion that the order passed by the learned trial Court suffers from patent illegality and material irregularity. The basis of the suit is the agreement of exchange dated 15.6.1989 said to be executed by Sohan Singh and Manso with Gurbax Singh, father of the petitioner. The petitioner has pleaded that the date of death of Gurbax Singh as also the registered Will dated 3.1.1994. By virtue of the amendment, the plaintiff wishes to incorporate that he is one of the legal heirs on the basis of the said Will. The plaintiff has sought to clarify the said agreement dated 15.6.1989 whereby Sohan Singh has exchanged the land measuring 1 kanal 17 marlas in favour of Gurbax Singh and that Mansu had executed sale in favour of Gurbax Singh. Since, the land of Manso was not mentioned in the plaint therefore the share of the parties are affected. The amendment in the head note and in the plaint was sought to be incorporated for these reasons. CR No. 2538 of 2010 0-3- The plaintiff is yet to lead evidence though the issues were framed on 17.9.2007. The fact as sought to be pleaded by the petitioner are just and necessary for the proper decision of the case and do not change the basic nature of the suit i.e. the exchange deed dated 15.9.1989. The facts leading to the agreement of exchange and other consequential facts are sought to be incorporated. It cannot be said that by such incorporation of facts, the basic nature of the suit gets changed. Since the plaintiff has not led any evidence, it cannot be said that the trial has commenced. In view of the above fact, order passed by the learned trial Court is set aside. The petitioner is permitted to amend the plaint as sought for. Petition is allowed, in the above terms. (HEMANT GUPTA) JUDGE 17.8.2010 preeti