Kanwar Singh v. Dharam Pal & Ors.

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Parveen Hans, Advocate for the petitioner. Mr. Ravinder Chauhan, Advocate for respondents no. 2 and 3. None for remaining respondents. * * * L. N. MITTAL, J. (Oral) : Plaintiff Kanwar Singh, aggrieved by order dated 20.05.2011 (Annexure P-1), passed by learned Civil Judge (Junior Division), Bhiwani, thereby dismissing plaintiff's application (Annexure P-3) for amendment of plaint, has filed this revision petition under Article 227 of the Constitution of India to challenge order Annexure P-1. Plaintiff has filed suit claiming that he has 1/6th share in the suit C. R. No. 4456 of 2011 2 land and is owner in possession thereof, having acquired occupancy rights maturing in ownership rights and also as legal heir of Sarja (since deceased). By way of amendment, plaintiff-petitioner wants to rectify some clerical/typographical errors, as detailed in sub-paragraphs B, C, D and E of Paragraph 5 of the amendment application (Annexure P-3).

In addition to it , the plaintiff also wants to plead that he has 1/4th share instead of 1/6th share in the suit land. The plaintiff also wants to plead that decree dated 10.10.l994 passed by Assistant Collector First Grade, Loharu in suit for occupancy rights is null and void because it was obtained against dead person Sarja Devi, who had died issueless on 08.07.1978. Various other details are also sought to be pleaded including details regarding shares of different co-sharers in the suit land. The aforesaid amendment application has been resisted by defendants. Learned trial court, vide impugned order (Annexure P-1) dismissed the plaintiff's application for amendment of plaint. Feeling aggrieved, plaintiff has filed this revision petition. Reply on behalf of respondents no.2 and 3, filed today in Court, is taken on record subject to all just exceptions. Copy already supplied to the counsel opposite.

C. R. No. 4456 of 2011 3 Learned counsel for the petitioner contended that plaintiff- petitioner, by proposed amendment of plaint, wants to simply rectify some clerical/typographical errors and wants to clarify certain averments already made in the plaint, and therefore, proposed amendment of plaint should be allowed. On the other hand, counsel for respondents no.2 and 3 contended that proposed amendment of plaint cannot be allowed since amendment application was moved after commencement of trial. It was also contended that Sarja Devi had died in the year 2003 i.e. long after the passing of decree dated 10.10.l994 by Assistant Collector. I have carefully considered the rival contentions. In my considered opinion, in so far as amendments specified in sub-paragraphs B, C, D and E of Paragraph 5 of the amendment application (Annexure P-3) are concerned, the same being made to rectify the clerical/ typographical errors, should be allowed to be made, on payment of costs.

However, the remaining amendments cannot be allowed to be made in view of proviso to Order 6 Rule 17 of the Code of Civil Procedure (in short – CPC), which prohibits amendment of pleadings after commencement of trial, unless the party seeking amendment could not have raised the matter before commencement of trial in spite of due diligence. In the instant case, the plaintiff, by way of remaining proposed amendments of plaint, wants to C. R. No. 4456 of 2011 4 change the nature of his claim altogether. The plaintiff has already challenged decree dated 10.10.1994 in the plaint on various grounds. If Sarja Devi, against whom the said decree was passed, had died issueless on

08.07.1978, as now sought to be pleaded by amendment of plaint, there is no reason why the said plea could could not be taken in the original plaint. Similarly, plea regarding shares of the plaintiff, being 1/4th instead of 1/6th in the suit land, could also be taken in the original plaint and there is no reason to change the share of the plaintiff. Various other pleas sought to be taken by amendment, as mentioned in sub-paragraphs A and F of Paragraph 5 of the amendment application (Annexure P-3), also cannot be permitted, at this stage because admittedly, amendment application was moved after commencement of trial. For the reasons aforesaid, the instant revision petition is allowed partly. Impugned order (Annexure P-1) passed by the trial court is modified. Proposed amendments of plaint, as specified in sub-paragraphs B, C, D and E of Paragraph 5 of the amendment application (Annexure P-3), are permitted to be made in the plaint, subject to payment of Rs.2,000/- as costs precedent, whereas the remaining proposed amendments of plaint are not allowed. August 07, 2012 monika ( L. N. MITTAL ) JUDGE