Civil Revision No. 5961 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 5961 of 2009 Date of decision : December 02, 2009 Vasu Ram ....Petitioner versus Satbir Singh ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Vijay Pal Singh, Advocate for Mr. Ajit Malik, Advocate, for the petitioner Mr. Bijender Dhankar, Advocate for the respondent L.N. Mittal, J. (Oral) Defendant Vasu Ram has filed the instant civil revision petition under Article 227 of the Constitution of India read with section 151 of Code of Civil Procedure (in short, CPC), impugning order dated 12.8.2009, Annexure P/3, passed by learned Additional Civil Judge (Senior Division), Ganaur, thereby allowing application filed by plaintiff-respondent Satbir Singh under section 151 CPC for amendment of plaint as well as for amendment of the agreement to sell. Plaintiff filed suit for possession by way of specific performance of agreement to sell, Annexure P/1, allegedly executed by the defendant. In the agreement, land in suit has been described by way of Civil Revision No. 5961 of 2009 -2- khewat number, khata number, rectangle number and killa numbers. In the suit also, the plaintiff accordingly described the suit land as described in the agreement. The plaintiff filed application, Annexure P/2, under section 151 CPC for amendment of the plaint and agreement to sell to the extent that rectangle no. 39 of the suit land mentioned in the agreement to sell and consequently in the plaint be read as rectangle no. 35. The said application has been allowed by the trial court by impugned order on payment of Rs 1000/- as costs. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioner vehemently contended that in view of amended provision under Order 6 Rule 17 CPC, the aforesaid amendment could not have been allowed after commencement of the trial whereas in the instant case, the amendment has been allowed after commencement of trial. In support of this contention, learned counsel for the petitioner has placed reliance on a judgment of Hon'ble the Supreme Court in the case of Vidyabai & Ors. Versus Padmalatha & Anr., 2009 (1) RCR (Civil) 763. There is no quarrel with the aforesaid legal position. Proviso to Rule 17 of Order 6 CPC, on which the aforesaid contention is based is reproduced herein:- “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 party could not have raised the matter before the commencement of trial.” Civil Revision No. 5961 of 2009 -3- A bare perusal of the aforesaid provision would reveal that amendment of pleading can be allowed even after the trial has commenced if the court comes to the conclusion that in spite of due diligence, the party seeking amendment could not have raised the matter before the commencement of trial. In the instant case, the trial court has of course not recorded a specific finding to this effect. However, the plea of the plaintiff- respondent in application Annexure P/2 is that rectangle no. 39 in the agreement to sell was fraudulently mentioned by the defendant inasmuch as the defendant is not owner of land in rectangle no. 39 but is owner of land in rectangle no. 35. It was on the basis of description of land in the agreement that in the plaint also, rectangle no. 39 was mentioned. It is, thus, apparent that in spite of due diligence, the plaintiff could not have raised this matter before commencing of trial because error of description came to the notice of the plaintiff only after commencement of the trial. Consequently, I am of the considered opinion that the proposed amendment of plaint could be allowed in the instant case under the aforesaid provision. Learned counsel for the petitioner next contended that amendment of the agreement itself could not have been allowed by interim order and could be allowed only after adjudication at the time of final decision of the suit. On the other hand, learned counsel for the respondent relying on a judgment of the Hon'ble Supreme Court in the case of Puran Ram versus Bhaguram & Anr. , 2008(2) RCR (Civil) 499 (which has also been relied on by the trial court in the impugned order) contended that even amendment of the agreement can be allowed. I have carefully considered the rival contentions. Civil Revision No. 5961 of 2009 -4- Amendment of agreement could not have been allowed by interim order but could be allowed after adjudicating the rival contentions of the parties. The plaintiff has to lead evidence to prove his contention that the agreement to sell related to land of rectangle no. 35 and not land of rectangle no. 39. The plaintiff has to prove that rectangle no. 39 in lieu of rectangle no. 35 was mentioned in the agreement by the defendant fraudulently as is sought to be pleaded by way of amendment of plaint. Such a finding can be recorded only after the parties adduce evidence in support of their respective contentions. In the case of Puran Ram (supra), Hon'ble the Supreme Court has not laid down that amendment of agreement to sell can be allowed by interim order without recording finding on the basis of evidence. Accordingly, impugned order of the trial court needs to be modified/clarified to this extent. In fact, the trial court has also mentioned in the impugned order that the said order shall not have any bearing on the merits of the case. In view of the aforesaid, the instant revision petition is disposed of by modifying impugned order dated 12.8.2009, Annexure P/3, passed by the trial court to the extent that the said order shall relate to amendment of plaint only whereas for amendment of agreement, finding has to be recorded by the trial court at the time of final decision of the suit on appreciation of evidence to be led by the parties. ( L.N. Mittal ) December 02, 2009 Judge 'dalbir'