C.R.No.3623 of 2010 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.3623 of 2010 Date of decision: 07.1.2011 Naresh Kumari ….Petitioner Vs. Bhale Ram and others ….Respondents CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. P.S. Dhaliwal, Advocate for the petitioner. Mr. J.L. Malhotra, Advocate for the respondents. Jaswant Singh, J Plaintiff-petitioner by way of filing present petition under Article 227 of the Constitution of India has prayed for setting aside order dated 17.4.2010 passed by the learned Civil Judge (Jr. Division), Hansi whereby an application filed by him under Order 6 Rule 17 read with Section 151 CPC for amendment of the plaint has been dismissed. Facts enumerated in the case are that the plaintiff-petitioner filed a suit for declaration that the land measuring 149 kanal 15 marla as described in the head note of the plaint is ancestral co-parcenery hindu joint family property and she being the co-parcener is entitled to 1/5th share further praying for a decree for joint possession and also a declaration that the alienation of the suit property by way of decree dated 20.4.1972 and 30.10.1980 passed by the learned Civil Courts at Hansi are illegal, null and C.R.No.3623 of 2010 #2# void and not binding on the rights of the plaiintiff with a further prayer for consequential relief of rendition of accouns of the proceeds of aforesaid land measuring 149 kanal 15 marla and perpetual injunction restraining the defendants-respondents from alienating 1/5th share of the plaintiff-petitioner of the suit land. It is necessary to mention here that in paragraph 17 of the plaint, it was pleaded as under: “That the plaintiff could amend the plaint after having been informed by the defendants about any transfer of land in question by defendant Nos.1 & 2 in favour of any other person to the exclusion of plaintiff or any land purchased by the defendants out of and from the income of HUF.” During the pendency of the suit, Ompati Malik-defendant No.3/respondent No.2 appeared as DW1 and during her cross examination, it was discovered that plot No.997 measuring 700 sq. yards, Advocate Colony, Hansi was purchased in the name of Vinod Rana jointly with Ompati Malik-respondent No.2 and now after the death of said Vinod Rana his share was transferred in favour of defendant No.2-Smt Dani (since deceased) and the said plot was purchased from the income of co-parcenery ancestral joint hindu family property and as such she being the legal heir is entitled to 1/4th share in the said plot. Hence, the amendment of the suit became necessary and in the circumstances, an application dated 31.7.2006 (P.2) U/o 6 Rule 17 CPC was filed by the plaintiff-petitioner. Reply (P.3) to the application was filed and a preliminary objection was raised that case is fixed for rebuttal and arguments, hence the present application is not maintainable. Learned trial Court after hearing both the sides, dismissed the application vide the impugned order dated 17.4.2010 while observing that C.R.No.3623 of 2010 #3# the plaintiff-petitioner remained silent for about eight months after the cross examination of the defendant No.3-Ompati (DW1) and there is no explanation for this laxity. It was also held that when the trial has already been concluded and the case is at the stage of rebuttal evidence, no one can be allowed to take the benefit of his own wrong. It is also mentioned in the order that application for impleadment of LR of defendant No.2-Smt Dani Devi has been filed and copy of the same was supplied to the opposite side for reply and consideration of the said application for impleadment of the legal heir of defendant No.2. Learned counsel for the petitioner submits that in case the impugned order is not set aside and the proposed amendment is not allowed, the plaintiff-petitioner shall suffer a grave injustice and she shall be deprived of her lawful claims from the plot mentioned above. He also submits that in view of para 17 of the plaint, petitioner has already reserved his right to amendment and the proposed amendment is bonafide and not malafide. He has also submitted that no prejudice shall be caused to the defendants rather it is the plaintiff, who is the sufferer if the matter is prolonged due to the amendment. He cites a judgment of Hon'ble Supreme Court reported as Vidyabai and Ors v. Padmalatha & Anr 2009(1) CCC 0798. On the other hand, learned counsel for the defendants- respondents argues that the impugned order is perfectly legal and justified and does not require any interference while exercising powers under Article 227 of the Constitution of India by this Court. He further argues that the case is at the fag end of the trial and the plaintiff-petitioner is trying to delay the matter on one pretext or the other and that proposed amendment by C.R.No.3623 of 2010 #4# taking a clue from the cross examination of DW1 is only a wishful thinking of the plaintiff-petitioner. After hearing learned counsel for the parties and going through the record, I deem it appropriate that the interest of justice warrants interference in the impugned order dated 17.4.2010. It is not in dispute that the plaintiff-petitioner has specifically pleaded in paragraph 17 of the plaint quoted above and made her intention clear that in case she comes to know about the transfer of land in question by defendants No.1 & 2 in favour of any other person excluding the plaintiff-petitioner or any either land is found to have been purchased by the defendants out of the income of HUF, then she would amend the plaint. It is also not disputed that DW1-Ompati (defendant No..3) has admitted in her cross examination that a plot measuring 700 sq. yards situated in Advocate Colony, Hansi was purchased from the proceeds of joint hindu family property in which plaintiff-petitioner is having lawful claim to the extent of 1/4th share. It is also not in dispute that defendant No.2-Smt Dani has expired and her legal heirs are to be impleaded and they have a right to contest, therefore, under these circumstances, it can be safely concluded that the plaintiff-petitioner is prima facie having a genuine grievance against the plot referred above. It is also not disputed that the entire land in dispute as described in the head note as well as the discovered plot No.997 is in the possession of defendants or their representatives and plaintiff-petitioner is not in possession. Keeping in view of the facts and circumstances of the present case, I find that the proposed amendment is necessary to decide the real dispute between the real lis between the parties and will meet the end of C.R.No.3623 of 2010 #5# justice within the parameter of Order 6 Rule 17 CPC. For the reasons stated hereinabove, I find merit in the present petition and accordingly the same is allowed and the impugned order dated 17.4.2010 passed by the learned Civil Judge (Jr. Division), Hansi. January 07, 2011 ( JASWANT SINGH ) manoj JUDGE