CR No. 4953 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM Nos.20599 & 20600-CII of 2009 And CR No. 4953 of 2009 Date of Decision: 1.09.2009 Hari Singh ...Petitioner Vs. Amarjit Singh & Anr. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Padam Jain, Advocate, for the petitioner. Vinod K.Sharma,J. (Oral) The petitioner has invoked the jurisdiction of this court under Article 227 of the Constitution of India to challenge the order dated 3.8.2009 passed by the learned Additional Civil Judge (Sr.Division), Sultanpur Lodhi whereby application moved by the petitioner under Order 6 Rule 17 read with section 151 of the Code of Civil Procedure (for short the Code) for amendment of the replication has been ordered to be dismissed. The petitioner filed a suit for possession of land measuring 27 kanals 9 marlas by way of specific performance of agreement to sell dated 8.10.2004 for a total sale consideration of Rs.7.5 lacs (Rupees seven lac CR No. 4953 of 2009 2 fifty thousand only). Out of which a sum of Rs.7 lacs (Rupees seven lac only) was said to have been paid as earnest money. In the alternative it was prayed that the suit for recovery of Rs.7.5 lacs (Rupees seven lac fifty thousand only) be decreed. The suit was contested wherein a specific plea was taken that the respondent/defendants had taken a loan of Rs.70,000/- only (Rupees seventy thousand only) and an agreement was executed to secure the loan. It was further the case of the respondent/defendants that as he could not pay the loan and interest as per agreement dated 9.2.2004 so another agreement was executed on 8.10.2004 without payment of any amount. In the replication filed the petitioner denied these facts. By way of amendment, the petitioner prayed that he may be allowed to amend the replication for clarification purpose to plead therein that under the agreement dated 9.2.2004 the sale deed was to be executed on 8.8.2004 but as the respondent/defendants could not redeem the suit land from the bank the date was extended to 10.10.2004 but again the sale deed could not be executed. However, the petitioner refused to extend the time and thereafter six months' time was agreed to be given provided defendant/respondents executed fresh agreement to sell after revoking the previous agreement and returning amount of Rs.7 lacs (Rupees seven lac only). Thereafter, a fresh agreement to sell was executed on 8.10.2004 after payment of Rs.7 lac (Rupees seven lac only) as earnest money. It was pleaded that the suit was at initial stage and that the issues had not been framed. The application was contested by taking a preliminary CR No. 4953 of 2009 3 objection that the petitioner could not be allowed to amend the replication. It was also pleaded that the petitioner wants to set up entirely a new case and wish to withdraw the admission. It was also pleaded that as the trial has already commenced, therefore, the amendment could not be allowed. Learned trial court held that in the suit filed the plaintiff had not pleaded about any previous agreement to sell but had set up a case for specific performance of agreement to sell dated 9.2.2004. In the replication, where admission was made by the plaintiff that agreement dated 9.2.2004 was executed but it was not to secure the loan as alleged, it was pleaded that the defendant-respondents were paid a sum of Rs.7 lacs (Rupees seven lac only) as earnest money. It was also pleaded in the replication that at the request of defendant No.1 the date of execution of the sale deed was extended from 8.8.2004 to 10.10.2004 and thereafter with his own free will defendant/respondent had executed agreement to sell dated 8.10.2004 qua the same land and for the same consideration. Learned counsel for the petitioner contends that the amendment sought was only in the nature of clarification. Learned trial court did not accept this plea and found that the petitioner was trying to set up totally a different stand and wanted to withdraw his admission. The learned court further held that in view of the law laid down by the Hon'ble Supreme Court in the case of Ajendraprasadji N.Pande and other Vs. Swami Keshavprakeshdasji N. & others, 2007 (1) Civil Court Cases 500, the amendment could not be allowed after the commencement of trial unless it was proved that in spite of due diligence the facts are to be pleaded were not known or could not be known with due diligence. The learned trial CR No. 4953 of 2009 4 court held that trial is commenced when the issues are settled and case is fixed for evidence. The learned trial court held that issues in this case were framed on 24.4.2009 and the the application was moved when the case was fixed for evidence. The learned trial court rejected the application on the ground that it was not open to the petitioner to withdraw the admission and further that the amendment could not be allowed after commencement of trail. Mr.Padam Jain, learned counsel appearing on behalf of the petitioner has challenged the impugned order by placing reliance on the judgment of Hon'ble Supreme Court in the case of Vidyabai & Ors.Vs. Padmalatha & Anr. 2009 (2) PLR 490. Hon'ble Supreme Court in the above case has also been pleased to lay down that the court can allow the amendment before commencement of trial and not after that. It has been held that filing of affidavit by a witness in lieu of examination-in-chief would amount to commencement of trial. The contention of the learned counsel for the petitioner was that in view of the latest judgment of Hon'ble Supreme Court in the case of Vidyabai & Ors.Vs. Padmalatha & Anr. (supra), commencement of trial is to be taken when the affidavits in evidence are filed and not prior thereto. Para No.8 of this judgment reads as under:- “8. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfill the said pre-condition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it CR No. 4953 of 2009 5 did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking to various steps at different stages of the proceedings;. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to commencement of proceedings.” In view of the judgment of Hon'ble Supreme Court in the case of Ajendraprasadji N.Pande and other Vs. Swami Keshavprakeshdasji N. & others supra relied upon by the learned trial court, it cannot be said that the Hon'ble Supreme Court has not taken the framing of issues to be commencement of trial. It was on the facts of that case that Hon'ble Supreme Court held that on filing of affidavit in evidence trial had already commenced and therefore, amendment was not permissible. Even otherwise, the petitioner cannot be allowed to withdraw the admission made in the replication and can be permitted to make out a new case then the one set up in the plaint and in the replication also failed. The order passed by the learned trial court, therefore, does not suffer from any illegality which may call for interference by this court in exercise of revisional jurisdiction under article 227 of the Constitution of India. No merit. Dismissed. (Vinod K.Sharma) 1.09.2009 Judge rp