C.R.No.2440 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C.R.No.2440 of 2004 Date of Decision : October 17, 2006. Balwant Singh ..... Petitioner Vs. Shadi Lal and others ..... Respondents Coram : Hon'ble Mr.Justice P.S.Patwalia * * * Present : Mr.Manohar Dadwal, Advocate for the petitioner. Mr.Avtar S. Bhatti, Advocate for respondent no.4. Mr.K.S.Cheema, Advocate for respondent no.8. * * * P.S.Patwalia, J. : Learned counsel for the petitioner states that respondent no.6 has been proceeded against ex-parte before the trial court and hence need not be served in this revision petition. The plaintiff has filed this Civil Revision challenging order dated 24.4.2004 passed by the learned Civil Judge (Junior Division), Dasuya whereby an application under Order 6 Rule 17 filed for amendment C.R.No.2440 of 2004 2 of the plaint was partly allowed. Petitioner Balwant Singh along with his brother Bikram Singh had filed a suit for declaration to the effect that they and defendants no.1 to 3 are owners in possession of land detailed in the plaint with a further prayer for grant of permanent injunction restraining the defendants from alienating the land, raising any type of construction over it or cutting and removing trees situated on the same. The suit was filed in the year 1995. It is during the pendency of this suit that an application was moved in March 2004 seeking amendment of the plaint. Two amendments were sought – firstly the plaintiffs wanted to replace the old khasra numbers with new khasra numbers in the head note and prayer clause of the plaint. Secondly they wished to add additional facts to plead that during the pendency of the suit, defendant no.8 had taken forcible possession of 12 marlas of the suit land as mentioned in the head note of the plaint and in case the Court came to the conclusion that the plaintiff is not in possession of any part of the said 12 marlas of land then the plaintiffs are entitled to possession of the land by removal of the boundary wall. They also prayed for addition of a prayer in the prayer clause to add a prayer for possession of 12 marlas of land as aforementioned. The trial court by the order challenged in this revision petition has partly allowed the amendment application. While the petitioners have been allowed to substitute new khasra numbers in place of the old, the second part of the amendment for addition of the claim of possession of 12 marlas has been declined. It is this part of the order which is challenged by the petitioner-plaintiff. C.R.No.2440 of 2004 3 On the second issue, defendant no.4, in his reply stated that he was owner in possession of 12 marlas on the basis of a registered Will and had alienated the land before the filing of the suit vide registered sale deed dated 21.9.1995. The mutation regarding the same had also been incorporated in the revenue record. The land had been sold to defendant no.8. Defendant no.8 in her separate written statement also reiterated the aforesaid contentions. It was further stated by her that she has validly raised a boundary wall over the said area by incurring huge expenses. It was stated that the factum of possession of land by defendant no.8 over the said area was well in the knowledge of the plaintiff even before the filing of the suit and therefore such an amendment could not be allowed at this belated stage after almost nine years of the filing of the suit. This part of the claim was rejected by the trial court with the following observations :- “....but the second relief sought by the plaintiffs for possession of the land measuring 0 kanal-12 marlas of khasra no.629, allegedly taken in possession forcibly by defendant no.8 during pendency of the suit is not found to be sustainable because the said land was purchased by the defendant no.8 vide registered sale deed dated 21.9.95 Ex.D2 even before filing the present suit on 13.10.95 by the plaintiffs against the defendants. This relief was not sought by the plaintiffs at the time of filing the main suit, and is found to be a new case for possession of the said property which is not permissible in the eyes of C.R.No.2440 of 2004 4 law. Therefore, the proposed amendment to this effect is not found to be sustainable.” I have heard Mr.Manohar Dadwal, Advocate for the petitioner, Mr.Avtar Singh Bhatti, Advocate for respondent no.4 and Mr.K.S.Cheema, Advocate for respondent no.8 and perused the paper book. Learned counsel for the petitioner contended that it was clear from a reading of the averments in the application filed for amendment of the plaint that defendant no.8 had taken possession during the pendency of the suit. He submitted that the law of amendment of pleadings is that the Court should be liberal in permitting amendment. He relied upon a judgment of the Hon'ble Supreme Court in Sampath Kumar vs. Ayyakannu & another reported as 2002 (3) CCC 364 (SC) to contend that the Hon'ble Supreme Court had allowed amendment in the plaint even after 11 years of the institution of the suit. He thus prayed that the amendment to seek possession of 12 marlas of land should also be granted. On the other hand, Mr.Cheema, learned counsel for respondent no.8 contends that a reading of the application for amendment would show that it has not been mentioned by the plaintiff as to when possession was taken after filing of the suit. Only vague averment had been made that possession had been taken during the pendency of the suit without giving the time or manner in which the same was done. He submitted that this is for the reason that actually defendant no.8 had purchased the property by a registered sale deed from defendant no.4 even before the filing of the suit and was given possession at that time. Even a boundary wall had been raised by defendant no.8 after spending a huge sum of money. Therefore the averments made in the application for amendment were incorrect. He C.R.No.2440 of 2004 5 relied upon a judgment of this court in Mrs. Sharan Arora vs. Parkash Kaur reported as 2000 (3) PLR 80 and contended that in this judgment also amendment of the plaint had been sought after trial in the suit had progressed by making a vague statement that the plaintiff had been dispossessed during the pendency of the suit and on that basis sought a further relief of possession as well. In that case the amendment was disallowed on the ground that firstly there was a vague statement stating that sometime during the pendency of the suit the plaintiff had been dispossessed and secondly the same could not be granted after the trial has commenced. Thereafter he relied upon another judgment of this Court in the case of Prem Chand vs. Chetan Dass reported as 2006 (6) CCC 41 where also the Court was considering an application filed by a plaintiff for amendment of a suit for mandatory injunction to that of a suit for possession. After examining a number of judgments of the Supreme Court and this Court, the Court concluded as under :- “4. I have heard the learned counsel for the parties and have perused the record carefully. 5. The law enunciated in various judicial precedents relied upon by the respective parties is well recognised. However, the application of the same depends upon the facts of each case. 6. The amendment of pleadings is generally permissible when those are necessary for determination of the real controversy in the suit and the power to allow amendment may be appropriately exercised in the interest of justice C.R.No.2440 of 2004 6 but he exercise of such power is governed by judicial consideration and should be exercised with great care and caution. The provision has been incorporated to do justice but at the same time liberal approach should not result in injustice and prejudice to the other side as well. 7. Few of the principles established by various judicial decisions in respect of amendment of pleadings are : (a) The parties should not be allowed to substitute one cause of action or the nature of the claim for another as claimed originally or should also not be allowed to change the subject matter or the controversy in the suit ; (b) The parties should not be allowed to introduce by amendment an inconsistent or contrary plea to negate the facts originally admitted though a party may be allowed inconsistent plea on admitted facts by way of amendment ; (c) The amendment should not cause prejudice to the other side which cannot be compensated by way of costs ; (d) The parties should not be allowed amendment of a claim or relief which is C.R.No.2440 of 2004 7 barred by law of limitation when amendment is sought to be made as it defeats a legal right which has accrued in favour of a party. However, this may be allowed only in very exceptional circumstances when the facts of the case so warrant. 8. Each case relating to the amendment has to be decided on its own facts by applying the judicial precedents which govern amendment of pleadings. The principles are fixed but the application of the same varies according to facts of each case. The power is to be exercised by the Courts for the ends of justice and to prevent the abuse of process of the Court. 9. In the facts of the present case, it can be safely inferred that the trial Court has clearly fallen in error in allowing the amendment of the plaint to the plaintiff-respondent. The plaintiff was well aware of the facts which are now sought to be incorporated in the plaint and further the amendment completely changes the nature of the suit from mandatory injunction to that of possession in the present case. The amendment causes prejudice to the rights of the defendant- petitioner and has been filed at this belated stage C.R.No.2440 of 2004 8 without any justified explanation.” It was held that since the amendment completely changed the nature of the suit from mandatory injunction to that of possession and caused prejudice to the rights of the defendants and had been filed at a belated stage without explanation, the same was to be disallowed. Having examined the facts of the present case I do not find any merit in the contentions raised by the petitioner. It emerges from the record that defendant no.8 had purchased the property by a registered sale deed dated 21.9.1995 even before the filing of the suit. She has raised a boundary wall as well. The plaintiff does not state in the application as to when he was dispossessed from the property. Only a vague averment has been made to the effect that he was dispossessed during the pendency of the suit without specifying as to how and when the same was done. Still further by granting the amendment, entire nature of the suit would be changed. It would cause prejudice to the rights of the defendants. Still further the ratio of law laid down in the two judgments cited by the counsel for the respondents, is clearly attracted to the facts of the present case. I therefore find no error in the view taken by the trial court in disallowing the application to this extent. The present Civil Revision is therefore dismissed. October 17, 2006 ( P.S.Patwalia ) monika Judge