High Court of Punjab And Ha D Haryana
Case Details
Page 1 of 7 7 (cid:1) IN THE HI E HIGH COURT OF PUNJAB AND HA D HARYANA AT CHANDIGARH 129 Smt. Surinder der Kaur Sh. Jaswant Si nt Singh CR-22-2025 (O&M) Date of decision: 13.01.2025 Vs. ...Petitioner(s) ...Respondent(s) CORAM: HON’BLE MS. JUSTICE NID NIDHI GUPTA Present:- cate Mr.Harish Goyal, Advocate for the petitioner. NIDHI GUPTA, PTA, J. *** Present petition under Art r Article 227 of the Constitution of India is file filed by the plaintiff seeking setti setting aside of the order dated 07.12.2024 (A 4 (Annexure P1) passed by the the learned Civil Judge, Junior Division, Khar Kharar in Civil Suit No.CS-341-201 2019, whereby the application under Order 6 er 6 Rule 17 CPC for amendment o ent of the plaint, was dismissed; and to allow t ow the application for amendment ent of the plaint, in the interest of justice. 2. Learned counsel for the
Legal Reasoning
the petitioner/plaintiff submits that the pe petitioner/plaintiff and e the respondent/defendant are children/legal egal heirs of deceased Dayal Si l Singh who had expired on 21.08.2015. A . After his death, the respondent ent forged and fabricated a Will of Dayal Sin Singh dated 25.01.2015 and A d Affidavit dated 01.09.2015. Aggrieved of of the said fraud and the man manipulated Will made by the respondent, th t, the petitioner filed suit for decla eclaration that she is entitled to half share in in estate of her father Dayal Sing Singh. However, at the time of SUNENA 2025.01.22 10:42 I attest to the accuracy and integrity of this document (cid:1) Page 2 of 7 7 (cid:1) filing the said said suit, the petitioner was und under great mental stress and therefore, cou , could not disclose that Dayal Sin l Singh had suffered a paralysis attack. It is s is submitted that due to this imm immense stress, the petitioner could not me mention the other land situated ted in the village. As such, the petitioner filed filed the present application under der Order 6 Rule 17 CPC seeking amendment o nt of the plaint (Annexure P2). H ). However, vide the impugned order, the sam same has been dismissed. 3. Learned counsel for the the petitioner submits that the respondent h t had also presented one forged ged Affidavit dated 01.09.2015 before the lea e learned Court below alleged to h to have been executed just 10 days after the the death of the father of the pe e petitioner. The defendant had also purchase hased one land in village Harpalp rpalpur, Hadbast No.116, Tehsil Ghanaur, Patia Patiala which has been purchased b ed by the defendant after selling the ancestral tral land situated in Village Bhukr ukri, Tehsil Kharar, District SAS Nagar, Mohali
Legal Reasoning
hali. It is contended that since the d he defendant is entitled to equal share in the p he property of his father and the a he aforesaid property is bought after selling th g the ancestral property, therefore fore, the petitioner is entitled to joint possess session of the abovesaid land also. It is submitted that accordingly in in order to include these techn chnical facts in the plaint, the petitioner had had moved the application for am amendment of plaint, as it was necessary to a to amend the plaint for proper and and just decision of the case. It is further subm submitted that the said amendmen ments would have no impact on the nature of t of the suit. However, these facts have not been appreciated by SUNENA 2025.01.22 10:42 I attest to the accuracy and integrity of this document (cid:1) the learned tr d trial Court while passing the im e impugned order. The learned Page 3 of 7 7 (cid:1) trial Court fail t failed to appreciate that in makin aking the said amendments, the nature of the the suit would remain unchanged. ed. First of all the petitioner by way of amen mendment sought to include th the fact that affidavit dated 1/09/2015 is is forged and fabricated docume ument. This document will not change the na e nature of the case. Already disput spute regarding forgery of Will is in issue. So, r o, regarding additional relief regar egarding forgery of Affidavit will not change t ge the nature and substance of of suit at all. Moreover, this document was was not in the knowledge of the pl e plaintiff, at the time of filing of the suit. Furth urther by way of amendment, pla , plaintiff wanted to incorporate some more la e land, being ancestral, since the s he same was also purchased, by selling the an e ancestral land at Tehsil Ghanur. nur. So, the same will also not changed the n he nature of the suit. So, all these a se amendments, will not change the nature of of the suit, rather will reduce the the multiplying of the litigation. The said fact act was again not in knowledge of t of the petitioner. Further due to mental stress, ess, the suit could not be filed prop roperly and the petitioner could not instruct he ct her counsel properly. It is accord rdingly prayed that the instant petition be all allowed, and the impugned order rder be set aside in the interest of justice for p for proper adjudication of the matte atter. 4. 5. No other argument is raise aised on behalf of the petitioner. I have heard learned cou counsel for the petitioner and perused the ca e case file in great detail. SUNENA 2025.01.22 10:42 I attest to the accuracy and integrity of this document (cid:1) 6. The Present suit was filed iled by the petitioner/plaintiff on Page 4 of 7 7 (cid:1) 22.05.2019 se 9 seeking declaration to the effect ffect that the petitioner/plaintiff was entitled t ed to half share in the estate of he f her father as described in the headnote of t of the plaint; and for declaration t ion to the effect that Will dated 25.01.2015 is is forged and fabricated; and nd mutation of inheritance of deceased Day Dayal Singh sanctioned on basis of of the abovesaid Will in favour of defendant i ant is illegal, null and void having n ng no effect on the rights of the plaintiff, with ith consequential relief of joint po t possession and for permanent injunction res restraining the defendant from a m alienating the suit property. Thereafter, the r, the present application under Ord Order 6 Rule 17 CPC (Annexure P2) was filed b led by the petitioner on 24.09.2024 2024 seeking amendment of the above said pla plaint. 7. Order 6 Rule 17 CPC reads ads as under: - -The Court may at any stage of “17. Amendment of pleadings. - r party to alter or amend his the proceedings allow either pa and on such terms as may be pleadings in such manner and nts shall be made as may be just, and all such amendments ju necessary for the purpose of deter determining the real questions in ties: controversy between the parties: for amendment shall be allowed Provided that no application for a d, unless the Court comes to the after the trial has commenced, un ue diligence, the party could not conclusion that in spite of due di e the commencement of trial.” have raised the matter before the 8. Bare reading of the above ove-said provision shows that it is very cate categorically stipulated therein t in that “...no application for amendment sh nt shall be allowed after the trial trial is commenced, unless the Court comes t es to the conclusion that in spite pite of due diligence, the party SUNENA 2025.01.22 10:42 I attest to the accuracy and integrity of this document (cid:1) could not ha t have raised the matter befor fore the commencement of Page 5 of 7 7 (cid:1) trial.” Admitte ittedly, issues in the present case ase were framed by the learned trial Court in t in November 2023; whereas the the present application under Order 6 Rule 1 ule 17 CPC (Annexure P2) for amen mendment has been filed by the petitioner on on 24.09.2024 i.e. after trial had had commenced - which is not permitted as p as per law. 9. Furthermore, by way of the f the amendment, the petitioner has sought to t to lay challenge to the Affidavit da it dated 01.09.2015. However, a perusal of the the application (Annexure P2) unde under Order 6 Rule 17 read with Section 151 CP 1 CPC for amendment of the plaint laint, of both, the pleadings and prayer clause; use; shows that the said Affidavit ha it has now here been mentioned in the said app application for amendment of plai plaint. This fact is also admitted by learned cou counsel for the petitioner. 10. By way of the amendm dment, the petitioner further wishes to inco incorporate challenge to some more more land. The only reason given by the petition itioner for failing to incorporate the the said amendments originally in the plaint i int is that at the time of filing of of the suit, the petitioner was under great st at stress due to paralysis attack of of her father, and that the said facts were no e not in her knowledge. Howeve ever, ‘mental stress’ does not constitute a a ground on the basis of which ch amendment of plaint can be permitted illeg illegally after commencement of t of trial. The proviso is categoric in this stipulat ulation/enunciation that no applica plication for amendment shall be allowed after t fter trial. SUNENA 2025.01.22 10:42 I attest to the accuracy and integrity of this document (cid:1) 11. It is also relevant to note t te that in her cross-examination Page 6 of 7 7 (cid:1) on 09.08.2024 024, the petitioner has clearly state stated that “I do not know when the attack of p of paralysis took place. I do not k ot know whether paralysis took place before 4 re 4 to 5 days earlier to death nor I nor I enquired this fact from my brother. I did n did not tell my counsel about the fa he fact of paralysis attack of my father as the c the counsel did not ask me. I did n did not talk to my father till his death nor he a he asked me anything about the wil e will. The record of treatment is with my broth rother. I do not remember when my n my brother got the treatment of my father.” er.” The application of the petitione ioner does not even disclose the dates or the p he period during which she remaine ained under mental stress. Even no medical ev l evidence has been produced by t by the petitioner to support the said contentio ntion. 12. Further, amendment to pla o plaint after commencement of trial is envisag isaged only if it is shown on record cord that despite exercise of due diligence, the the said facts were not in the k e knowledge of the applicant. However, it ha has been observed in the impugne ugned order that: – “11. It is also pertinent to mentio on addressing arguments by both stay application was decided. Th on record proposed facts which is now, but no efforts has been mad of to incorporate the proposed fac ention here that on 04.11.2023, both the parties of the case the d. The plaintiff could have bring ch is intended to be incorporated made by the plaintiff at the time d facts.” 13. Though it has been conten ntended by learned counsel for the petitioner ner that the petitioner did not hav have knowledge of the Affidavit dated 01.09.20 9.2015; or the land that is now sou sought to be incorporated in the SUNENA 2025.01.22 10:42 I attest to the accuracy and integrity of this document (cid:1) plaint. Howev wever, there is nothing whatsoev soever on record to reveal or Page 7 of 7 7 (cid:1) indicate as to s to the manner in which the petiti etitioner now gained knowledge regarding the the said facts. In any event, the said said contention of the petitioner is belied by t by the fact that the petitioner wa wants to incorporate material regarding wh which she had already deposed osed in her cross-examination. Clearly therefo erefore, the said facts were in the the knowledge of the petitioner and could hav have been brought on record be before the learned trial Court prior to comm mmencement of trial. However, the r, the petitioner failed to exercise due diligence nce. For this reason as well, t ll, the amendment cannot be permitted. 14.
Decision
In view of the above, no g no ground is made out that calls for interferenc rence in the impugned order. The The petitioner is only trying to cover lacunae nae in the case which cannot be p e permitted as she has omitted to plead rega regarding facts and document. Th t. This falls in the field of the evidence to b to be led and therefore, does not not call for interference of this Court. 15. 16. 13.01.2025 Sunena The present petition is dism dismissed. Pending application(s) if an if any also stand(s) disposed of. (Nidhi Gupta) Judge Whether spea Whether repo peaking/reasoned: eportable: Yes/No Yes/No SUNENA 2025.01.22 10:42 I attest to the accuracy and integrity of this document (cid:1)