IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.R No. 209 of 2007 alongwith CMPMO No.703 of 2009 Judgment reserved on 29.3.2010 Date of decision : 5 .4.2010 ____________________________________________________ Harmehtab Singh Rarewala …Petitioner. Versus Jagteshwar Prit Singh Rarewala & Ors. …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the petitioner(s) : Mr. A.K. Vashista, Advocate (in both the petitions) For the Respondents : Mr. G.D. Verma, Senior Advocate with Mr. Romesh Verma, Advocate, for respondents No.1 & 2 in CR No.209/07 and for the respondents in CMPMO No.703/09. Kuldip Singh, Judge This judgment shall dispose of CR No.209 of 2007 and CMPMO No.703 of 2009, both having arisen from Civil Suit No.7/1 of 2007 pending in the Court of learned Civil Judge, (Senior Division), Kasauli, District Solan. CR No.209 of 2007 has been filed against order dated 15.9.2007 in CMP No.16 of 2007 whereby learned Civil Judge has rejected the application of petitioner under Order 23 rule 1 _____________________ ¹ Whether reporters of Local Papers may be allowed to see the Judgment ?Yes read with Section 151 CPC to withdraw the suit with liberty to file fresh suit on the same cause of action. CMPMO No.703 of 2009 has been filed against the order dated 22.12.2009 passed in CMA No.245/6 of 2009 whereby learned Civil Judge has dismissed the application of petitioner for amendment of plaint under Order 6 Rule 17 read with Section 151 CPC. 2. The facts in brief are that petitioner has filed a suit on the grounds that Dileshwar Prit Singh Rarewala had informed the petitioner that he had transferred all his movable and immovable properties in favour of the petitioner by way of a Will. The petitioner during the life time of Dileshwar Prit Singh Rarewala was living with him and after his death petitioner is in possession of immovable property situate at Jagjit Nagar, Tehsil Kasauli, District Solan and other properties. It has been alleged that after the death of Dileshwar Prit Singh Rarewala, the respondent No.3 in connivance with respondents No.1 and 2 had put locks on Kothi/building situate at Jagjit Nagar. There are other valuable documents left by Dileshwar Prit Singh Rarewala in the said Kothi. The petitioner has prayed for permanent prohibitory injunction against respondents restraining them from entering in the said Kothi/house with further direction not to interfere in the said Kothi/house, remove any items from there, cause any type of damage to any items, documents, papers including Will etc. lying in the Kothi/house situate at village Jagjit Nagar, Tehsil Kasauli, Distt Solan. The injunction has also been prayed against respondents from operating or getting the locker of the State Bank of Patiala, Kasauli opened which is standing in the name of deceased Dileshwar Prit Singh Rarewala and not to do any wrong, illegal Act prejudicial to the right, title interest of the petitioner over the properties left by deceased Dileshwar Prit Singh Rarewala. 3. The suit was contested by respondents No.1 and 2 by filing written statement. They have denied the stand of the petitioner. They have pleaded that after the death of Dileshwar Prit Singh Rarewala who has left no wife or children they have become owners of the suit properties as per Hindu Succession Act. The respondents No.1 and 2 being only surviving brothers have succeeded to the movable and immovable estate left behind by Dileshwar Prit Singh Rarewala. The respondents No.1 and 2 have filed counter-claim against petitioner and respondent No.3 restraining them from interfering in the suit properties including Kothi/house belonging to deceased Dileshwar Prit Singh Rarewala in village Jagjit Nagar and claiming any right over movable and immovable properties of the deceased Dileshwar Prit Singh Rarewala including bank account number standing in the name of deceased. 4. The petitioner filed written statement to the counter-claim in which it has been pleaded that Dileshwar Prit Singh Rarewala had executed a Will dated 1.9.2006 and therefore, respondents No.1,2 have no right, title or interest in the suit properties. The petitioner has also filed replication to the written statement of respondents No.1 and 2 wherein he has again pleaded that Dileshwar Prit Singh Rarewala had executed a Will dated 1.9.2006 in favour of petitioner. 5. The petitioner had filed an application under Order 23 Rule 1 read with Section 151 CPC for withdrawal of the suit with permission to file fresh on the same cause of action. This application was contested by the other side and the learned Civil Judge has dismissed the same on 15.9.2007, which has been assailed in the Civil Revision. 6. The petitioner had filed an application under Order 6 Rule 17 read with Section 151 CPC for amendment of the plaint giving more particulars about the Will of Dileshwar Prit Singh Rarewala allegedly executed in favour of the petitioner. This application was also contested by respondents No.1,2 and was dismissed by Civil Judge on 22.12.2009, which has been assailed under Article 227 of the Constitution of India. 7. I have heard the learned counsel for the parties. The petitioner has placed on record certified copies of plaint, written statement and other material in CMPMO No.703 of 2009. The learned counsel for the petitioner has submitted that learned Civil Judge has erred in not allowing the application under Order 23 Rule 1 read with Section 151 CPC for permission to withdraw the suit with liberty to file fresh on the same cause of action. He has also submitted that the order refusing to amend the plaint passed by learned Civil Judge is also wrong. The learned Senior Advocate appearing on behalf of the respondents has supported the order dated 15.9.2007 and the order dated 22.12.2009 passed by learned Civil Judge. 8. In the application under Order 23 Rule 1 read with Section 151 CPC, it has been stated that properties owned by Dileshwar Prit Singh Rarewala have not been described in accordance with Order 7 Rule 3 CPC. Dileshwar Prit Singh Rarewala had bequeathed his properties in favour of various persons as mentioned in the Will, such persons are to be impleaded as parties in the suit. It has also been submitted that respondents have taken objection in the written statement that the suit is not maintainable. It has been stated in the application that for want of proper pleadings, proper parties and form of the suit, there is a formal defect in the suit which is likely to be dismissed on account of formal defect and therefore, petitioner may be permitted to withdrawn the suit with permission to file a fresh. This application has been opposed. It has been submitted that petitioner is trying to wriggle out of the admissions made in the plaint and there is no reason for granting permission to withdraw the suit and to file fresh suit on the same cause of action. It has been submitted that application is not maintainable. 9. The Order 23 rule (1) sub rule (3) is as follows:- “Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim”. The contention of learned counsel for the petitioner is that immovable property in the suit has not been described in the plaint in the manner provided in Rule 3 of Order 7, which is as follows: “Where the subject-matter of the suit is immovable property. – Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers”. 10. It has been submitted that permission to withdraw the suit with liberty to file a fresh suit on the same cause of action can be granted when suit must fail on formal defect or there are sufficient grounds for plaintiff to institute a fresh suit. The formal defect for withdrawal of suit with permission to file fresh suit on the same cause of action has been mentioned in clause (a), sub rule (3), rule (1) of Order 23 CPC. The purpose of Rule 3 of Order 7 CPC is to identify immovable suit property. The immovable property can be identified by boundaries or numbers in a record of settlement or survey or by any mode by which the suit property can be identified. In the plaint the property has been described as Khoti/house, situated at village Jagjit Nagar, Tehsil Kasauli Distt Solan, H.P. The suit is also with respect to movable properties allegedly lying in the said Kothi/house as mentioned in the plaint, but the petitioner for formal defect has relied on Order 7 Rule 3 CPC which is meant for immovable property only. 11. There is no specific objection in the written statement of respondents No.1,2 about the maintainability of the suit for want of proper description of the immovable property or for want of non- compliance of Rule 3 of Order 7 CPC. On the contrary respondents No.1,2 have also raised counter-claim in the suit for restraining petitioner and respondent No.3 from interfering on the suit properties including kohti/house belonging to deceased Dileshwar Prit Singh Rarewala situate in village Jagjit Nagar. There is no manner of doubt that there is no confusion to petitioner or respondents No.1,2 regarding the suit properties situate at village Jagjit Nagar from the plaint or the written statement together with counter-claim of respondents No.1,2. It is not the case of the petitioner or respondents No.1,2 that late Dileshwar Prit Singh Rarewala has left several properties at different locations in village Jagjit Nagar. The purpose of Order 7 Rule 3 CPC has been served when petitioner has described the properties of late Dileshwar Prit Singh Rarewala situate at village Jagjit Nagar which has been understood and replied in the written statement by respondents No.1,2 who have also raised counter-claim with respect to the same properties against the petitioner and respondent No.3. 12. It has been submitted that suit is likely to fail as other persons in whose favour late Dileshwar Prit Singh Rarewala has also executed a Will have not been impleaded as parties in the suit. In Promila Bakshi & Ors. V. Ashok Bhatia & Ors. 2007(1) CCC 367 (HP) the then Hon’ble Chief Justice noticed Order 23 Rule 1(3) (a)(b) CPC and has observed that the petitioners in the application did not at all state any material fact or any material particular as to who were the persons who had died or which were the “transfers” which had taken place during the pendency of the suit and as to what are the “facts” which have now emerged which are required to be incorporated in the new suit proposed to be filed and upheld the order of the trial Court refusing to withdraw the suit with liberty to file a fresh suit on the same cause of action. The suit is for permanent prohibitory injunction and not for declaration of ownership on the basis of alleged Will of Dileshwar Prit Singh Rarewala in favour of petitioner. The purpose of the suit is to seek injunction against respondents on the basis of alleged Will of Dileshwar Prit Singh Rarewala executed in favour of petitioner and to protect his alleged possession on kothi/house situate at Jagjit Nagar. There is no averment in the plaint that any person other then defendants impleaded in the suit are also threatening to interfere in the alleged possession of petitioner nor such other persons have been identified in the plaint nor in application for withdrawal of suit with permission to file fresh suit, therefore, petitioner is not entitled to withdraw the suit with permission to file fresh suit for not impleading persons named in the alleged Will of Dileshwar Prit Singh Rarewala. 13. It has also been submitted on behalf of the petitioner that since the respondents No.1,2 have taken objection that the suit is not maintainable in the present form, therefore, petitioner may be permitted to withdraw the suit with liberty to file a fresh suit. The objection of respondents No.1,2 that suit is not maintainable is no ground to give permission to petitioner to withdraw the suit with liberty to file a fresh suit. 14. The learned counsel for the petitioner has also invoked clause (b) sub rule 3, rule 1 of Order 23 for permission to withdrawn the suit with liberty to file a fresh suit by submitting that clause (b) provides withdrawal of the suit on ‘sufficient grounds’ also. The petitioner has identified alleged formal defects in the application. The withdrawal of suit on the ground of formal defect is provided in clause (a), sub rule (3), rule1 of Order 23 CPC. The petitioner has not projected any other alleged ‘sufficient grounds’ under clause (b), sub rule (3), rule 1 of Order 23 for granting permission to withdraw the suit with permission to file fresh suit. It has already been held above that petitioner has not established any formal defect for withdrawing the suit under clause (a) sub rule 3, rule 1 of Order 23. The petitioner has failed to establish ‘sufficient grounds’ for withdrawal of the suit as contemplated by clause (b) of sub rule 3 of rule 1 of Order 7 CPC. 15. The learned counsel for the petitioner has relied Brajamohan Sabato v. Sarojini Panigrahi and another AIR 1975 Orissa 39, Smt. Shima Sundari Lekri v. Paltu Hemram and others, AIR 1982 Calcutta 5, Duryodhan Jena v. Satyabadi Samal and others, AIR 1986 Orissa 58 in support of his contention. In Brajamohan Sabato ( supra) it has been held that the mistake committed by the plaintiff in not seeking the appropriate relief in the suit constitutes a sufficient ground. This is not the ground for withdrawal of suit in the present case. In Smt. Shima Sundari Lekri (supra) the petitioner had filed an application for withdrawing the suit with liberty to sue afresh on the ground that no notice under Section 80 of the Civil Procedure Code had been served upon the Junior Land Reforms Officer in compliance with the provision of Section 53A of the W.B. Land Reforms Act, before instituting the suit. It was held that non- joinder of the Revenue Officer as a party to the suit can be taken to be a formal defect. In that suit by virtue of Section 53A of the W.B. Land Reforms Act Revenue Officer was required to be a party in the suit of the nature which was filed by the petitioner, therefore the Court has held that non-joinder of the Revenue Officer as a party to the suit as formal defect. No such statutory requirement for impleading some persons has been pointed out by learned counsel for the petitioner. Hence Smt. Shima Sundari Lekri (supra) is not applicable. 16. In Duryodhan Jena (supra) the plaintiff had filed an application under Order 23 Rule 1(3) CPC for withdrawal of suit with liberty to file a fresh suit on the grounds that M/s. Pratibha Talkies was a partnership concern. The defendant No.1 in his written statement had denied the existence of partnership and claimed exclusive ownership of the cinema. In these circumstances, the plaintiff felt that it was desirable to pray for dissolution of the partnership firm, ask for accounts to defendant No.1 and to injunct the District Magistrate, Ganjam from issuing the licence in the name of defendant No.1, who it appears had been obtaining licence for running the cinema in his own name by practicing fraud. The suit filed by the plaintiff was one for injunction only and the District Magistrate, Ganjam was not a party in the suit; he had been advised to file a comprehensive suit to get reliefs relating to the subject matter of the dispute. The Court allowed the application to withdraw the suit with liberty to file a fresh suit. The order passed by the Court below was upheld in the High Court. In the present case the petitioner has not put forward the case that he wants to file a comprehensive suit with change in relief clause also, therefore, Duryodhan Jena (supra) is not applicable. 17. In CMPMO No.703 of 2009 the grievance of the petitioner is that his application for amendment of plaint has been wrongly rejected by the learned Civil Judge on 22.12.2009. The petitioner has filed application for amendment of the plaint and he intends to incorporate paras 5(a) and 5(b) by way of amendment in the plaint. The Rule 17 of Order 6 CPC is as follows:- “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 Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial” 18. The proviso to Rule 17 Order 6 CPC is clear to the effect 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. The issues were framed in the suit on 15.1.2008. The Supreme Court in Vidyabai vs. Padmalatha AIR 2009 SC 1433 has observed: “The ratio in Kailash vs. Nanhku (2005) 4 SCC 480 was reiterated stating that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence”. 19. The petitioner was given several opportunities to lead the evidence and ultimately evidence of the petitioner was closed by the orders of the Court on 15.9.2009 and on that date an application under Order 6 Rule 17 read with Section 151 CPC for amendment of the plaint was filed. It is thus clear that trial of the suit had commenced much prior to the filing of the application for amendment of the plaint. There is no averment in the amendment application that despite due diligence the petitioner could not file the application for amendment of plaint earlier. On the contrary plea has been taken that no evidence has been led by the petitioner and at this stage no prejudice will be caused to the respondents, if amendment is allowed. The petitioner was given several opportunities by the trial Court to lead evidence but despite that he did not lead evidence but he filed the application for amendment. Be that as it may the fact remains there is no averment in the application by the petitioner that he could not file the application before settlement of issues despite due diligence. The proviso to Rule 17 of Order 6 CPC mandates 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. There is no wisher of due diligence in the amendment application. In Sohan Lal vs. Mohan Lal and others Latest HLJ 2009(HP) 1410 it was observed that there is no averment in the amendment application that despite due diligence the petitioner could not plead the proposed amendment in the original plaint. Thereafter, it was held that the amendment application cannot be allowed for want of necessary averments in the application as per proviso to Rule 17 of Order 6 CPC. The Court below has rightly rejected the application. There is no merit in the petition. 20. No other point was urged. 21. The result of above discussion, CR No.209 of 2007 and CMPMO No.703 of 2009 are dismissed. No costs. April 05, 2010 (Kuldip Singh) (sks) Judge.