IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No.5757 of 2010 (O&M) Date of Decision: 14.10.2010 Harjit Singh. ....... Petitioner through Shri Anupam Bhardwaj, Advocate. Versus Balwinder Kaur. ....... Respondent through Shri Ashish Aggarwal, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. The petitioner is aggrieved by order dated 7.8.2010 passed by the trial Court vide which the application of the petitioner filed under Order 6 Rule 17 of the C.P.C. was dismissed. Initially, a suit for permanent injunction was filed by the petitioner for restraining the respondent from interfering in his possession over the plot/house which she claims to have purchased from his mother. The petitioner had specifically pleaded in paragraph 4 of the plaint that the sale deed had been executed by his mother-Sawinder Kaur in favour of the respondent, but averred that the same was forged and fabricated document and was a result of fraud. During the course of proceedings, the petitioner moved an application under Order 6 Rule 17 of the C.P.C. with a prayer to convert the C.R.No.5757 of 2010 (O&M) -2- .... suit into one for declaration as well to the effect that he is owner in possession of the disputed property on the basis of inheritance. The prayer clause was also sought to be amended. That application was allowed. When the matter reached the fag-end of the trial and it was fixed for orders after arguments, the petitioner once again moved an application under Order 6 Rule 17 of the C.P.C. saying that he be permitted to lay a challenge to the sale deed as well and in this eventuality, he should also be permitted to amend the heading of the suit as well. This prayer has been declined which is the cause of grievance of the petitioner in this revision petition. Learned counsel for the petitioner has contended that since the averment regarding execution of the sale deed being a result of fraud was already therein the plaint, the amendment sought by the petitioner was not going to change the nature of the suit and, therefore, it ought to have been allowed. On the other hand, learned counsel for the respondent contended that the factum of the sale deed was to the knowledge of the respondent from the very beginning as it was executed by his mother and further, that there is a specific pleading to that effect in paragraph 4 of the plaint. He further contended that despite this fact, initially the petitioner chose to file a suit for permanent injunction and by virtue of amendment, he then sought the suit to be amended for declaration, but did not challenge the sale deed. He submitted that the prayer of the petitioner has now rightly been declined by the trial Court. C.R.No.5757 of 2010 (O&M) -3- .... I have considered the rival contentions. In my opinion, the impugned order has justifiably been passed. The petitioner was having knowledge of the sale deed from the very beginning, but did not choose to pose a challenge to it even though he had pleaded that it was a result of fraud. It is a settled principle of law that all the pleas which are available to a party and all causes of action which are open to him, should be taken up in the first instance. Equitable justice cannot be a synonym for condonation of gross negligence. As noticed above, the petitioner availed himself of one opportunity to amend the pleadings which was granted and even at that point of time, he did not raise any challenge to the sale deed. Now when the case is at fag-end, the prayer of the petitioner to challenge the sale deed cannot be accepted. It was open to him to lay a challenge to the sale deed of which he had made a grievance in paragraph 4 of the plaint, but he did not do so. There is, thus, no ground to interfere with the impugned order. The revision petition is, accordingly, dismissed. October 14,2010 ( Mahesh Grover ) “SCM” Judge