IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No:228 of 2010 Date of decision: 11.11.2010 Anil Mohil .....Petitioner. Versus Vivek Thakur and Ors. .....Respondents. Coram The Hon'ble Mr. Justice Deepak Gupta, J. 1 Whether approved for reporting? No For the petitioner: Mr.Deepak Kaushal, Advocate. For the respondents: Ms. Jyotsna Rewal Dua, Advocate. Deepak Gupta, J (Oral). By means of this petition, the petitioner has challenged the order dated 29.5.2010 whereby the application filed by the petitioner for amendment of the plaint was dismissed by the learned Trial Court. 2. Briefly stated the facts of the case are that the plaintiff filed a suit in the year 2005 claiming that late Sh.Vijender Singh had entered into an agreement to transfer the suit land in his favour sometime in the year 1993. The suit was filed for specific performance of the contract. It was alleged in the suit that Vijender Singh had died and the defendants being his legal heirs were bound by the agreement Whether the reports of the local papers may be allowed to see the judgment? 2 entered into by Vijender Singh. In the written statement, one of the objections taken was that Vijender Singh had no right in the suit land and, therefore, could not transfer the same. It was also pleaded that the Will relied upon by the plaintiff had been held to be invalid in a Civil Suit decided by the learned Senior Sub Judge, Nahan on 31.12.1997 in which both the plaintiff and Vijender Singh were parties. This judgment was upheld by the learned District Judge, Sirmaur in Civil Appeal No.08-CA/13 of 1998 titled Shanti Devi Vs. Usha Thakur dated 7.5.1999. It was thereafter that a replication was filed in which an alternative plea was sought to be taken that even if the Will was not proved, then also Vijender Singh had some share in the land. 3. It would be pertinent to mention here that the plaintiff took more one year to file the replication itself before the learned Trial Court. Thereafter, an objection was taken by the defendants that such a plea could not be raised in the replication and, therefore, the pleadings to this extent be struck off. Thereafter, the present application for amendment was filed. The learned Trial Court vide its detailed order has come to the conclusion that the amendment cannot be allowed and it is not necessary to determine the real question. 4. I am not in agreement with the learned Trial Court 3 that the application was filed only with a view to delay the case because that does not appear to be the case and this application was filed immediately after the defendants raised an objection that such pleas could not be taken in the replication. 5. Having held so, the fact remains that the plaintiff filed a suit in the learned Trial Court claiming that Vijender Singh had entered into an agreement with him to sell the suit land to him and it was specifically pleaded that Vijender Singh was the owner of the entire property and that the defendants had stepped into the shoes of the deceased Vijender Singh. The plaintiff for reasons best known to him did not make any mention of the Will nor made any reference to the previous litigation to which the plaintiff was a party wherein the Will had been set aside. A plaintiff who approaches the Court without giving complete facts cannot be permitted to seek discretionary relief from the Court. 6. Moreover, the amendment changes the very nature of the suit. In the suit, it was prayed that Vijender Singh was the owner of the entire suit property and, therefore, had the right to alienate the same and now, it is prayed in the alternative that even if his share was either 1/3rd or 1/2nd, a decree for such share be passed. Such pleas are inconsistent with the averments made in main suit and, therefore, the 4 petition is rejected. 7. The parties through their counsel are directed to appear before the learned Trial Court on 22.12.2010. Since the suit is of the year 2005, the learned Trial Court is directed to dispose of the same as early as possible and in any event not later than 31st October, 2011. No order as to costs. November 11, 2010 (Deepak Gupta), J. (m)