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2013 DIGILAW 1213 (PNJ)

Gurdev Singh v. Prem Singh

2013-09-10

L.N.MITTAL

body2013
JUDGMENT L.N. MITTAL, J. Plaintiff Gurdev Singh, by filing this revision petition under Article 227 of the Constitution of India, has impugned order dated 19.08.2013 (Annexure P1) passed by the trial court, thereby dismissing application (Annexure P5) filed by the plaintiff for amendment of plaint. The plaintiff, in the suit, has inter alia alleged that he is coparcener with his father and brother (defendants no. 1 and 2) and is owner in joint possession as coparcener with all the defendants in the suit land, in addition to his share recorded in the revenue record. Sale deed of part of the suit land by defendant no. 1 in favour of defendants no. 3 to 7 has also been challenged, besides claiming other reliefs. The plaintiff has alleged that the suit land is ancestral co-parcenary property. In amendment application (Annexure P5), the plaintiff alleged that he was earlier not aware of the pedigree table and the manner of devolution of the suit land from common ancestor Nagina to plaintiff's father defendant no. 1, and therefore, the said details are sought to be incorporated by amendment of plaint. Besides it, the plaintiff also wants to plead that during pendency of the suit, defendant no. 1 has further sold part of the suit land to Manjit Kaur and Satinder Kaur. Defendants, by filing replies (Annexure P6 and P7), opposed the amendment application and pleaded that amendment of plaint cannot be allowed after commencement of trial. Various other pleas were also raised. Learned trial court, vide impugned order (Annexure P1), has dismissed application (Annexure P5) for amendment of plaint, filed by the plaintiff, who has therefore, filed this revision petition to assail the said order. I have heard counsel for the petitioner and perused the case file. Counsel for the petitioner contended that in the original plaint (Annexure P2) itself, the plaintiff has already pleaded that the suit land devolved from Nagina to his son Baru and from Baru to his son Prem Singh defendant no. 1, but in fact, land inherited by Baru and Molu sons of Nagina, from Nagina, was acquired and in lieu thereof, suit land was allotted and these facts have to be pleaded. Molu died issueless and his share was inherited by defendant no. 1 and others. It was also contended that sale of part of the suit land by defendant no. Molu died issueless and his share was inherited by defendant no. 1 and others. It was also contended that sale of part of the suit land by defendant no. 1 in favour of Manjit Kaur and Satinder Kaur has taken place during pendency of the suit, necessitating amendment regarding the same. I have carefully considered the aforesaid contentions. After framing of issues, the plaintiff availed of three opportunities for his evidence and it was thereafter that amendment application (Annexure P5) was filed. The amendment application was thus moved after commencement of trial. In view of Order 6 Rule 17 of the Code of Civil Procedure (in short CPC), amendment of pleading cannot be allowed 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, proposed amendment relating to pedigree table and devolution of land from Nagina to defendant no. 1 and also allotment of suit land in lieu of acquired land of Nagina cannot be allowed because it cannot be said that in spite of exercise of due diligence, the plaintiff could not have raised this matter before commencement of trial. On the other hand, the proposed amendment in this regard is based on documents available in revenue record and if plaintiff had exercised due diligence, he could have pleaded all these facts in the original plaint itself. On the contrary, the plaintiff could not be unaware of the pedigree table, which is now sought to be pleaded by amendment of plaint. Thus, amendment in this regard has been rightly declined after commencement of trial. As regards sale of part of the suit land during pendency of the suit by defendant no. 1 to Manjit Kaur and Satinder Kaur, the said amendment is irrelevant because the alleged sales would be hit by doctrine of lis pendens and also because by proposed amendment, the plaintiff does not propose to challenge the said sales nor the said vendees are sought to be impleaded as party. Consequently, mere mentioning of fact of said sales by amendment of plaint would not serve any purpose. For the reasons aforesaid, I find that the proposed amendment of plaint has been rightly declined by the trial court. Consequently, mere mentioning of fact of said sales by amendment of plaint would not serve any purpose. For the reasons aforesaid, I find that the proposed amendment of plaint has been rightly declined by the trial court. There is no perversity, illegality or jurisdictional error in the impugned order of the trial court so as to call for interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is merit less and is accordingly dismissed in limine.