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2014 DIGILAW 51 (PNJ)

Ajmer Singh v. Girdhala

2014-01-09

MEHINDER SINGH SULLAR

body2014
Mahindar Singh Sullar, J. The crux of the facts, which requires to be noticed for the limited purpose of deciding the core controversy, involved in the instant revision petition and emanating from the record is that, initially petitioner-plaintiff Ajmer Singh son of Ram Kishan (for brevity "the plaintiff"), claiming himself to be in possession filed the civil suit for a decree of permanent injunction, restraining Girdhala and others-respondents-defendants (for short "the defendants") from interfering in his possession of the property in dispute. The defendants contested the suit, stoutly denied the possession of the plaintiff and prayed for dismissal of the suit. During the pendency of the suit, the plaintiff filed the application for amendment of the plaint, which was dismissed by the trial Judge by virtue of impugned order dated 03.12.2013 (Annexure P-6). 2. Aggrieved thereby, the petitioner-plaintiff has preferred the present revision petition, invoking the provisions of Article 227 of the Constitution of India. 3. After hearing the learned counsel for the petitioner, going through the record with his valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant revision petition in this context. 4. As is evident from the record that the plaintiff claiming himself to be in possession of the suit property has filed a simple suit for permanent injunction against the defendants. On the contrary, the defendants claimed their possession over it. Whether the plaintiff or the defendants were in possession of the land in dispute at the relevant time, would be a moot point to be decided during the course of trial. There is no ambiguity in the plaint with regard to identification of the property in question. Moreover, it is now well-settled principle of law that where the facts sought to be incorporated in the plaint were already in the knowledge of the plaintiff at the time of filing the suit, in that eventuality, the amendment cannot be sought after framing of issues. Moreover, it is now well-settled principle of law that where the facts sought to be incorporated in the plaint were already in the knowledge of the plaintiff at the time of filing the suit, in that eventuality, the amendment cannot be sought after framing of issues. The trial Court dismissed the application for amendment of the plaint filed by the plaintiff by means of impugned order dated 03.12.2013 (Annexure P-6), which in substance is as under:-- As a general rule, leave to amendment of pleading is granted so as to enable real question in issue between the parties to be raised in pleadings, but where it introduces a totally different, new and changes the fundamental character of the suit, it will not be allowed. In the present case, if the amendment of pleadings regarding the suit property is allowed, then the proposed amendment would change the cause of action of the suit which is against the true spirit of Order 6, Rule 17 CPC. In view of proviso to Order 6, Rule 17 CPC, no such amendment of pleading could 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. The proposed amendment was within the knowledge of plaintiff at the time of filing the suit, but he has failed to incorporate the same in the suit. So plaintiff has failed to show that in spite of the "due diligence" they could not have incorporated the proposed amendment in the plaint. In the present case, two plaintiff's witnesses have already tendered their affidavits in their examination in chief and one PW i.e. draftsman has already been recorded. In this regard, reliance can be placed upon Mashyak Grihnirman Sahkari Sanstha Maryadit v. Usman Habib Dhuka and others, 2013 (2) RCR (Civil) 965 (SC) wherein Hon'ble Supreme Court has categorically held that where the facts sought to be incorporated in plaint was in knowledge of plaintiff at the time of filing of plaint. The amendment cannot be sought at later stage. In so far as this contention of applicant/plaintiff that the fact relating to proposed amendment could not be typed due to inadvertence on the part of counsel as well as typist is concerned, this contention is not sustainable as only on the basis of this contention, amendment of pleading cannot be allowed. The amendment cannot be sought at later stage. In so far as this contention of applicant/plaintiff that the fact relating to proposed amendment could not be typed due to inadvertence on the part of counsel as well as typist is concerned, this contention is not sustainable as only on the basis of this contention, amendment of pleading cannot be allowed. In this regard, reliance can be placed upon the law laid down in Sunil & others v. Jai Parkash and anr., 2013(3) Latest Judicial Reports 368 (P&H). 5. Meaning thereby, the trial Court has examined the matter in the right perspective and recorded the cogent grounds in this relevant behalf. Such order, containing the valid reasons, cannot legally be set aside, in exercise of limited revisional jurisdiction of this Court, as contemplated under Article 227 of the Constitution of India, unless the same is perverse and without jurisdiction. As, no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner, therefore, the impugned order (Annexure P-6) is hereby maintained in the obtaining circumstances of the case. In the light of aforesaid reasons, as there is no merit, therefore, the instant revision petition is hereby dismissed as such.