RSA No.1144 of 1992 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1144 of 1992 (O&M) Date of Decision: 23.3.2009 Amrik Singh & Ors. ..Appellants Vs. Smt.Kako Bai & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Ashok Verma, Advocate, for the appellants. Mr.Ajay Jain, Advocate, for the respondents. --- Vinod K.Sharma,J. (Oral) CM No.8764-C of 2008 This is an application under Order 6 Rule 17 (2) read with section 151 of the Code of Civil Procedure (for short the Code) for the amendment of the plaint in order to claim alternative relief, to claim decree qua sale of share of respondents No.1 and 2 who were admittedly party to the agreement which stands duly proved, to have been executed. RSA No.1144 of 1992 2 Suit for specific performance filed by the plaintiff/appellants has been ordered to be dismissed, as they failed to take alternative plea of specific performance qua share of respondents No.1 and 2. Learned counsel for the applicant/appellants contends, that the amendment sought is necessary for just and proper adjudication of the case as the right of the plaintiffs to seek alternative relief could be granted by the court even in the absence of prayer in this regard. In support of the application for amendment learned counsel for the appellants has placed reliance on the judgment of Hon'ble Supreme Court in the case of Surinder Singh Vs. Kapoor Singh (Dead) through LRs. and Ors. (2005) 5 SCC 142, wherein Hon'ble Supreme Court has been pleased to lay down as under:- “16. In view of the legal position and also in view of the statement made across the Bar including the application for amendment of the plaint filed on behalf of the plaintiff/respondents in this Court, there cannot be any doubt that this Court can uphold the decree passed by the Division Bench of the High Court relying on or on the basis of such statement as also upon allowing the application for amendment of the plaint. It may be true that in the application for amendment, there is no specific averment as contained in clause (ii)or sub-section (3) of Section 12 of the Act but the entire application, in our opinion, has to be read as a whole. The plaintiff/respondents have referred to the prayers made in RSA No.1144 of 1992 3 the plaint and have sought to substitute the same by a prayer as noticed hereinbefore and, thus, by necessary implication, the relief for obtaining compensation must be held to have been given up. In any event, such a statement was made at the Bar and we accept the same. 17. We have noticed hereinbefore that in Rachakonda Narayana this Court has clearly held that an application may be filed even at the appellate stage. To the same effect is the decision of this court in Surjit Kaur Vs. Naurata Singh.” Learned counsel for the appellants claims that amendment was, therefore, technical and necessary for the just and proper adjudication of the case. Learned counsel for the respondents opposed the application primarily on the plea that the application for amendment is highly belated and cannot be said to be bona fide. The contention of the learned counsel for the respondents is that in spite of dismissal of suit by learned trial court holding that the agreement was not executable against all the defendant/respondents, the plaintiffs did not choose to amend the plaint and insisted on the decree against all the respondents. Learned counsel for the respondents, therefore, contends that the application is, merely an attempt to fill in lacuna in the case which cannot be permitted at the stage of regular second appeal. However, on consideration, I find force in the contention RSA No.1144 of 1992 4 raised by the learned counsel for the appellants. The suit was filed prior to the amendment, therefore, amended provisions of Order 6 Rule 17 of the Code would not apply to the present case. Law of amendment prior to amendment in the Code. It has been repeatedly held that the court should liberally allow amendment in order to do substantial justice between the parties. Hon'ble Supreme Court in the case of Surinder Singh Vs. Kapoor Singh (Dead) through LRs. and Ors. (supra) has been pleased to lay down that amendment of the nature sought by the plaintiff/appellants can even be allowed by Supreme Court in Special Leave Petition. Once it is settled that the court can grant lesser relief than prayed, even without amendment then there is no reason to accept the contentions raised by the learned counsel for the respondents. Consequently, the application for amendment is allowed The plaintiff-appellants are permitted to amend the plaint. RSA No.1144 of 1992 In view of the order passed in the application for amendment allowing amendment of plaint the judgments and decree passed by the learned courts below are set aside and the case is remanded back to the trial court to adjudicate the matter afresh after giving an opportunity to the defendant-respondents to file amended written statement to amended plaint, and thereafter proceed with the matter by framing additional issues, if any, which may arise in view of the amended pleadings. However, it is made clear that the plaintiff/appellants would not RSA No.1144 of 1992 5 be entitled to claim enforcement of agreement regarding share of defendants No.3 to 9. The parties through their counsel are directed to appear before the learned trial court on 27.4.2009. 23.03.2009 (Vinod K.Sharma) rp Judge