C.R. No. 4590 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 4590 of 2011 Date of Decision: 1.8.2011 *** Sadhu Ram .. Petitioner VS. Surinder Kumar & Ors. .. Respondents CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Deepak Sharma, Advocate for the petitioner. *** ARVIND KUMAR, J. The present petitioner is the plaintiff in the suit for declaration sought by him in respect of estate of his father Siri Ram. The defendants therein are his real brothers, sisters etc. He claimed the declaration of his share to the extent of 1/4th share in the property. When his evidence was going on, he filed an application under Order 6 Rule 17 CPC seeking amendment of the plaint. The learned trial Court dismissed his said application vide impugned order dated 17.5.2011, leading to the institution of the present civil revision. Heard. Order VI Rule 17 CPC deals with the amendment of pleadings and provides that the Court may at any stage of the proceedings allow either party to alter or amend pleadings in such a manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under:- “Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the C.R. No. 4590 of 2011 2 party could not have raised the matter before the commencement of trial.” From the above, it is clear that the Court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of trial. In Usha Balashaheb Swami and Others v. Kiran Appaso Swami and Others 2007 AIR SCW 2545 the Hon'ble Apex Court observed that a prayer for amendment of the plaint stand on different footing. The relevant observations are set out as under : "19. ..a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.” Adverting to the facts of present case, as said above, the petitioner wants to add the prayer of separate possession by way of partition of 1/4th share and a pleading that the suit property is joint one. Admittedly, the said application was filed after the trial has commenced. It is apparent from the records that earlier also he filed an application for amendment and it is his second prayer for amendment of the plaint. The facts, sought to be incorporated in the plaint, cannot be said to be not in the knowledge of the plaintiff when he originally filed the suit. From the sequence of events. it cannot be said that despite exercise of due diligence, the petitioner could not C.R. No. 4590 of 2011 3 get the aforesaid fact incorporated in her plaint at an earlier stage. He kept the proceeding in the suit going on and when the case was at the stage of evidence, he filed the impugned application. Considering these aspects of the matter, the learned Court below rightly declined the prayer of the petitioner for amendment in the plaint. The Court below has passed a well reasoned order, which warrants no interference by this Court. Dismissed. (ARVIND KUMAR) JUDGE August 01,2011 Jiten