C.R. No. 2887 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 2887 of 2010(O&M) Date of Decision: 14.5.2010. Dr. Subhash Chander ....Petitioner Versus Sushil Kumar Luthra and others ...Respondents CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Mr. Vijay Lath, Advocate for the petitioner. RAJESH BINDAL, J **** Challenge in the present revision petition is to the order dated December 12, 2009 passed by the learned Court below whereby the application filed by the petitioner seeking amendment of the plaint in a suit filed way back on August 14, 2001 was dismissed. Briefly the facts are that the petitioner-plaintiff filed a suit claiming ownership to the extent of 1/3rd share in the property on the basis of Will executed by his father. The suit was filed on August 14, 2001 which is still at the stage of plaintiff's evidence. Application seeking amendment of the plaint was filed on March 31, 2008 which has been dismissed vide impugned order by the Court below holding that the amendment which is sought to be made is with regard to the facts which were existing prior to the filing of suit and the petitioner could not prove on record that inspite of due diligence, he could not plead these at the time of filing of the suit. Learned counsel for the petitioner submitted that it is a dispute between the family members where share in property has been sought on the basis of will executed by his deceased-father Darshan Lal. The will projected by the petitioner is dated June 27, 1996 bequeathing 1/3rd share in favour of petitioner whereas the respondent No.1 has projected a will in defence dated November 29, 1989 bequeathing the entire property in his favour. The land owned by the father of petitioner was situated in two villages, namely-Sallu Bhaini and Doaba Bhaini. Even though in the suit originally filed the details of the land pertained to village Sallu Bhaini was mentioned but inadvertently those of Doaba Bhaini were left out. During the pendency of the suit mutations were sanctioned in favour of respondent No.1 with regard to that land and the same was sought to be challenged by amendment of plaint. As technicality should not come in the way of substantial justice and delay is also not fatal for permitting C.R. No. 2887 of 2010 2 the party to amend pleadings even if the suit was filed almost 9 years back still to dispose of the controversy finally the amendment should be allowed. After hearing learned counsel for the petitioner, I do not find any merit in the present petition. While dismissing the application, the learned Court below had recorded following observations:- “Perusal of the file reveals that the present suit has been filed by the plaintiff way back in August 2001 for declaration that he is in possession of the suit property and also sought injunction for the same but after seven years he filed the application for amendment of the plaint vide which the plaintiff has sought to amend the plaint to the extent that he wants to add eight new declarations, challenge two new sale deeds and impleaded two new defendants and pleaded several new cause of actions. Further the sale deeds which the applicants want to challenge were dated 22.3.99 and the suit was filed on 14.8.2001. So in no stretch of thinking it can be believed that all these are not in the knowledge of the plaintiff at the time of filing of the suit. Further, it is clearly provided in order 6 Rule 17 CPC that amendment can only be allowed if party cannot raise the matter before commencement of the trial inspite of due diligence and in the case in hand plaintiff has not brought to light any such circumstances which shows that inspite of due diligence all these facts cannot be brought on record by the plaintiff before commencement of trial. Also sale deeds challenged now are dated 22.3.99 and the suit was filed on 14.8.01. From this fact it is clear that at the time of filing of the suit these are very much in the knowledge of the plaintiff. So at this stage when the suit is quite old and partly evidence was led by the plaintiff also such type of application appears to be mere delay tact of the plaintiff. So in the interest of justice, application in hand is dismissed being without merit.” It is a fact that the suit was filed way back on August 14, 2001. It is still at the stage of evidence of petitioner/plaintiff. A perusal of the order sheets produced by the petitioner on record along with C.M. No. 12473-CII 2010 shows that the proceedings in the case were merely being adjourned on request of counsel for the parties. Even the issues were framed more than four and a half years after the filing of the suit on January 30, 2006. On January 22, 2008 learned Court below had recorded that effort of the plaintiff is to delay the disposal of the suit for the reasons best known to him. Even if the contention C.R. No. 2887 of 2010 3 raised by learned counsel for the petitioner that now the petitioner has become vigilant and is taking proper care of his suit, is considered, still there was practically no explanation for not having challenged the order passed by the learned Court below on December 12, 2009 dismissing the application for amendment of the plaint immediately thereafter as the petition was filed in this Court on May 1, 2010 and in between for the evidence of petitioner/plaintiff the case was adjourned for five hearings and on two of them no evidence was led whereas on three of them evidence was led. The contention of learned counsel for the petitioner that the petitioner was not well for about a month from March 12, 2010 also does not come to his rescue in explaining the delay and latches, even after the impugned order was passed. For the reasons mentioned above, I do not find any merit in the present revision petition and the same is dismissed. (RAJESH BINDAL) 14.5.2010. JUDGE Reema