CR No.6914 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6914 of 2011 Date of decision: 11.11.2011 Shamsher Singh ...Petitioner Versus Smt.Mehar Kaur and another ...Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.I.D.Singla, Advocate for the petitioner **** Jitendra Chauhan, J. (Oral) The present civil revision has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 23.9.2011 (Annexure P-1), passed by the learned Civil Judge ( Senior Division), SAS Nagar, Mohali, vide which the application filed by the petitioner for amendment of the plaint was dismissed. The brief facts of the case are that the plaintiff entered into an agreement dated 2.1.2006, for purchase of land measuring one Kanal 10 Marlas with Balwinder Singh and Mehar Kaur. The mutation was not yet sanctioned in favour of the Balwinder Singh and Mehar Kaur. Balwinder Singh died on 20.6.2006 and the sale deed could not be executed on or before 25.6.2006. Thereafter, plaintiff -petitioner filed a suit for permanent injunction on 7.12.2006, praying for restraining the respondnts from alienating the land in any manner. Thereafter, the defendants filed their written statement. Issues from the pleadings of the original suit were framed CR No.6914 of 2011 2 on 19.2.2008 and the case was fixed for plaintiff's evidence. Plaintiff instead of leading his evidence, filed an application under Order VI Rule 17 of the Code of Civil Procedure for amendment of the plaint on different counts, which was dismissed on 23.9.2011, by the learned Civil Judge, Senior Division, Mohali. Learned counsel for the petitioner contends that the controversy involved between two claims i.e. claim in the original plaint and the amended plaint are interconnected. He further contends that as per the Jamabandi of the suit property, the property was in the name of one Mansa Singh since deceased. Accordingly, the plaintiff-petitioner wants to implead the other persons, as defendants Nos.3 to 5 to the suit. Therefore, the necessity arose to amend the plaint by converting the present suit of permanent injunction to a suit for possession by way of specific performance of the agreement to sell and therefore, the application be allowed. I have heard learned counsel for the petitioner and perused the case file. It is pertinent to reproduce Order 6 Rule 17 of the Code, which reads as under: “17.Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such 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: Provided that no application for amendment shall be allowed after the trial has commenced, unless the CR No.6914 of 2011 3 Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” Hence, bare perusal of the aforesaid provision shows that after commencement of trial, application for amendment of plaint can be allowed by learned trial court only if the court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. In the present case as discussed above, trial has already been commenced after framing of issues and now case is fixed for evidence of the plaintiff. The plaintiff-petitioner did not file a suit for specific performance of agreement to sell dated 2.1.2006, for possession and other relief but filed a simple suit for permanent injunction on 7.12.2006. Thereafter, the defendants filed their written statement. Issues from the pleadings of the original suit were framed on 19.2.2008, and the case was fixed for plaintiff's evidence. At the time of filing the suit, the suit should include the whole of the claim, which the plaintiff is entitled to, such as, relief for specific performance alongwith possession of the land. Law is well settled by Hon'ble Apex Court in Vidyabai and others vs. Padamalatha and another 2009(1) Recent Civil Reports (Civil), 763, that plaintiff has no right to file application for amendment of plaint after the commencement of trial, unless he is able to show that in spite of due diligence, he could not raise the matter before the commencement of trial. In view of the forgoing discussion, the findings returned by CR No.6914 of 2011 4 learned court below do not suffer from any illegality, infirmity, perversity or material irregularity as would call for interference by this Court. The present petition being devoid of any merit is dismissed in limine. 11.11.2011 (JITENDRA CHAUHAN) gsv JUDGE