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2013 DIGILAW 1676 (PNJ)

Om Parkash v. Ram Singh

2013-12-13

S.P.BANGARH

body2013
JUDGMENT Mr. S.P. Bangarh, J. (Oral):- The petitioner, herein, filed civil suit No. 123 of 2010 for permanent injunction. During the pendency of the civil suit, he filed an application under Order 6 Rule 17 CPC seeking amendment of the plaint on the ground that at the time of filing the suit, he inadvertently mentioned wrong measurement in para No.1 of the plaint, that bara is 198 x110= 2420 square yards and out of which he is the owner and occupier of half share i.e. 198 X 55= 1210 square yards. As per the actual measurement at the spot, measurement of the bara on the Western side is having 125 feet length and on the Eastern its length is 134 feet, on the Northern its width is 79 feet towards public street and on Southern side its width is 80 feet. When the petitioner learnt about the correct measurement of the disputed bara, he filed instant application for seeking correction in the plaint. 2. It is also averred that the respondents are owners and occupiers of the half share of bara situated in red line of the village in Eastern side of the bara. So, it was prayed that the amendment is very much necessary for just decision of the case, that will also not change the nature of the suit, as also shall not cause any prejudice to the respondents. Consequently, prayer for acceptance of this application, was, thus, made. 3. Respondents in their joint reply, apart from taking preliminary objections of maintainability of application, the application being an abuse process of law, the amendment sought cannot be allowed as the petitioner himself had mentioned the measurement of bara as 198 x 110 = 2420 square yards and now by filing the present application for amendment, he had claimed ownership of half share i.e. 1210 square yards. It was further averred that the suit is based on false and fabricated grounds and the correct site plan showing the actual dimensions and boundaries of the bara owned and possessed by the respondents has already been produced by them. No demarcation was ever taken by anybody in March, 2013, as alleged by the petitioner. So, it was prayed that no amendment in the plaint can be allowed. Consequently, prayer for dismissal of application was, thus, made. 4. No demarcation was ever taken by anybody in March, 2013, as alleged by the petitioner. So, it was prayed that no amendment in the plaint can be allowed. Consequently, prayer for dismissal of application was, thus, made. 4. After hearing both the sides, the trial Court vide order dated 15.10.2013 (Annexure P-1) dismissed the application of the petitioner, who aggrieved against the same, has filed the present civil revision with prayer for acceptance, thereof, and for acceptance of application, that was dismissed by the trial Court vide impugned order (Annexure P-1). 5. Learned counsel for the petitioner contended that due to inadvertence the correct dimension of the suit property could not be given in the plaint, as also in the site plan and, therefore, he may be allowed to make amendment in the plaint. He also contended that the evidence has already been led by the petitioner on the line of amendment sought in the plaint and, therefore, the proposed amendment has been sought to avoid dismissal of the suit on this ground. 6. Thoughtful consideration has been given to the contentions raised by the learned counsel for the petitioner. 7. The petitioner, indubitably, has already completed his evidence. As per proviso to Order 6 Rule 17 CPC, the proposed amendment can not be allowed, as the trial has commenced. Besides, the petitioner has mentioned more area than under his occupation in the site plan and the plaint. As per the evidence, he has claimed himself to be in possession of lesser area and the suit cannot be dismissed only on this ground by the trial Court, who if comes to the conclusion that the whole of the area mentioned in the plaint is not being occupied by the petitioner and he is in occupation of less area, then the decree for lesser area may be passed, but at this stage, when the valuable right has accrued to the respondents, this amendment sought in the plaint cannot be allowed. 8. The trial Court, thus, committed no illegality in dismissing the application by coming to the conclusion that since the trial has already begun and the petitioner has already completed his evidence, the proposed amendment cannot be allowed. 9. There is, thus, no illegality or impropriety in the impugned order, that is, hereby, upheld and affirmed. 10. 8. The trial Court, thus, committed no illegality in dismissing the application by coming to the conclusion that since the trial has already begun and the petitioner has already completed his evidence, the proposed amendment cannot be allowed. 9. There is, thus, no illegality or impropriety in the impugned order, that is, hereby, upheld and affirmed. 10. Resultantly, without prejudice to the merits of the main suit, the instant revision is dismissed.