CR No.1272 of 2010 (O&M) - 1 – IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.1272 of 2010 (O&M) Decided on: 16.08.2010 **** Suraj Singh and another . . . .Petitioners Versus Shri Bharat Bhushan and others . . . .Respondents **** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Kul Bhushan Sharma, Advocate for the petitioners. Mr.Rajesh Lamba, Advocate for the respondents. **** RAKESH KUMAR JAIN, J. (ORAL) This revision petition is directed against order dated 5.2.2010 passed by the Civil Judge (Junior Division), Faridabad whereby an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short ‘CPC’) filed by the plaintiffs for amending the plaint has been dismissed. Plaintiffs filed suit for possession alleging themselves to be the owner of the land comprising in Rect. No.41, Killa No.9/1 (2-19) situated within the revenue estate of village Nachouli, Tehsil & District Faridabad having been purchased from its earlier owner vide sale deed dated 25.10.1996 for a consideration of Rs.85,500/-. It was alleged that prior to the purchase, his vendors were the co-sharers in the land comprising in Khewat No.139 and on partition, Khewat No.1 was carved out and Killa No.9/1(2-19) had fallen to the share of the CR No.1272 of 2010 (O&M) - 2 – vendors of the plaintiffs, namely Ashok Kumar, Girish Kumar and Uday Bhan, in respect of which mutation of partition bearing No.1722 was also sanctioned by the Revenue Officer on 2.8.1994. The plaintiffs alleged to have purchased the suit land from Sh. Ashok Kumar, Girish Kumar and Uday Bhan by three separate sale deeds and have become owners of Killa No.9/1(2-19). They also wanted to bring an amendment in the prayer clause wherein they had earlier prayed for decree for possession but now they wanted to seek an alternative prayer that in case it is not proved that the property in dispute has been partitioned at the instance of its vendors, decree for possession may be granted. The application was contested by the defendants on the ground that the application has been filed at a belated stage and it would change the nature of the suit. The learned trial Court dismissed the application vide his impugned order dated 5.2.2010 on both the grounds namely, that the plaintiffs have sought amendment at a belated stage despite having prior knowledge of the fact which is sought to be incorporated and the incorporation of the relief clause would change the nature of the suit. Learned counsel for the petitioners has submitted that the first prayer for amendment is only explanatory as the petitioners wanted to add that he had not only purchased the suit land from Girish Kumar vide sale deed dated 25.10.1996 but also sale deeds were executed by Uday Bhan and Ashok Kumar. It is also submitted that the second prayer for amendment is with regard to prayer clause in which they have prayed for an alternative relief of joint possession which is not going to change the nature of the suit as the prayer is in the alternative. CR No.1272 of 2010 (O&M) - 3 – On the contrary, learned counsel for the respondents has vehemently argued that there is no error committed by the learned Court below, therefore, application for amendment moved by the petitioners is rightly dismissed. I have heard both the learned counsel for the parties and perused the record with their assistance. To my mind, the first prayer is only clarificatory in order to add the name of the other vendors also. The petitioners are not seeking to change the particulars of the sale deeds except to say that the sale deed dated 25.10.1996 was not only executed by Girish Kumar but also by Uday Bhan and Ashok Kumar. Insofar as the second prayer of alternative relief is concerned that would hardly change the nature of the suit because the nature of the suit remains the same as the plaintiffs had prayed for decree of possession. Only alternative prayer has been made that in case the Court does not find the fact of partition having been effected by the vendors of the plaintiffs a decree for joint possession may be given. Thus, the order passed by the learned Court below, to my mind, is patently erroneous. However, since the said application has been filed at a belated stage, therefore, the revision petition is allowed subject to payment of Rs.10,000/- as costs. (RAKESH KUMAR JAIN) 16.08.2010 JUDGE Vivek