Civil Revision No.1616 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.1616 of 2009 Date of Decision:24.03.2009 Lakhwinder Singh ....petitioner Versus Joginder Singh & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.K.S.Rekhi,Advocate for the petitioner **** RAKESH KUMAR GARG J. This is plaintiff's petition challenging the order dated 19.02.2009 passed by Civil Judge(Jr.Divn.) Tarn Taran whereby application filed by him under Order 6 Rule 17 for amendment of the plaint has been dismissed. As per the averments made in the petition, the present suit was filed by the petitioner on 05.09.2001. It has been further alleged that the present suit was filed by the petitioner along with his brother Sukhwinder Singh. During the pendency of the suit a writing was effected between the petitioner and Sukhwinder Singh on 20.06.2003 and as per this writing it was agreed that the petitioner would pursue the present suit and Sukhwinder Singh would have no concern with it. However, the suit continued. During the pendency of the suit, relations between the petitioner and Sukhwinder Singh became strained and he joined hands with defendant-respondent. Suit qua Sukhwinder Singh was dismissed under Order 9 rule 8 CPC on 15.09.2004. Since, Sukhwinder Singh had no interest left in the property as per writing dated 20.06.2003, the plaintiff was in sole possession of the Civil Revision No.1616 of 2009 2 property and by way of amendment of plaint he wanted to incorporate these facts. The application of the petitioner for amendment was contested by the defendants. The trial Court vide impugned order dated 19.02.2009 rejected the application for amendment of the plaint filed by the petitioner observing that amendment application has been filed after a considerable delay and the proposed amendment shall change the nature of the suit. The learned counsel for the petitioner has vehemently argued that the aforesaid amendment is necessary for adjudication of the case and the same is not going to change the nature of the case and the Hon'ble Supreme Court has authoritatively laid down in the case of Baldev Singh & Ors. Versus Manohar Singh & Anr.2006(3)RCR(Civil) 844 that amendment of the pleadings should be granted liberally and the Courts have wide and unfettered discretion, in this regard. Learned counsel for the petitioner during the course of arguments has very fairly conceded that in this case trial has already started and even both the parties have completed evidence. The Hon'ble Supreme Court in the case of Vidyabai & Ors. Versus Padmalatha & Anr. 2009(1)RCR(Civil) 763 has held that the amendment cannot be allowed in the pleadings after the trial has commenced unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. No such situation has been established in the present case. Even the petitioner has failed to mention in his petition the necessary facts to establish when the trial started in this case or when the evidence was complete. In fact this is not even the case of petitioner that despite diligence he could not amend the plaint before commencement of trial. Moreover, the amendment application is dated 02.01.2008 whereas since the passing of order dated 15.09.2004 the plaintiff was aware of the fact regarding the writing dated Civil Revision No.1616 of 2009 3 20.06.2003 between him and plaintiff No.2(whose case has since been dismissed) but plaintiff did not deem proper to amend his pleadings at that point of time. Thus, there is considerable delay in filing the amendment which has not been explained. Moreover, the trial Court was right while observing that if this amendment is allowed it would amount to change the nature of the case as by necessary implication the court would have to give finding as to whether the plailntiff No.2(Sukhwinder Singh) had given up his rights in favour of the plaintiff No.1 on the basis of the alleged agreement dated 20.06.2003. Accordingly, very nature of the suit would be changed. The judgment relied upon by the learned counsel for the appellant has been considered by the Apex Court in the case of Vidyabai & Ors(Supra) and it was noticed that in that case it was held that the trial did not commence. Thus, relying upon the case of Vidyabai & Ors (Supra), I find no merit in this revision. Dismissed. (RAKESH KUMAR GARG) JUDGE 24.03.2009 neenu