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2018 DIGILAW 346 (HP)

Gopal Singh @ Baldev Singh v. Parkash Chand

2018-03-14

DHARAM CHAND CHAUDHARY

body2018
JUDGMENT Dharam Chand Chaudhary, J —The order dated 17.07.2017, Annexure P-3, passed by learned Civil Judge (Jr. Division) , Court No.I, Dharamshala, District Kangra, H.P., in an application under Order 6 Rule 17 C.P.C., filed in Civil Suit No.147 of 2012, is under challenge in this petition. The petitioner, herein, is the plaintiff in the trial Court. The suit he filed for decree of declaration is pending disposal in the trial Court. The same presently is at the stage of recording plaintiff''s evidence. According to learned counsel, only one witness, namely Joginder Singh (PW-1) , Central Head Teacher, has been examined in the suit. It is from the record produced by the said witness, the petitionerplaintiff came to know that his name in the School record has been recorded as Baldev Singh and this has necessitated the amendment in the memo of parties and also in the prayer clause of the plaint. 2. The application has been resisted and contested on the grounds, inter-alia, that the same has been filed at a belated stage. Also that the plaintiff has already produced the evidence and the defendantrespondent may not have the opportunity to crossexamine the witnesses already examined by the plaintiffpetitioner. It is further submitted that allowing the correction of the name of the plaintiff-petitioner in the memo of parties and also in the prayer clause of the plaint, is likely to change the nature of the suit. 3. Learned trial Judge, on having gone through the provisions contained under Order 6 Rule 17 CPC and believing the version of the respondent-defendant in the reply to the application as correct, has concluded that the application being belated deserves dismissal. The same, thus, has been dismissed vide order under challenge in this petition. 4. True it is that in an application filed for amendment in pleadings, the parties seeking such amendment must satisfy the Court that despite due diligence the case sought to be pleaded by way of proposed amendment could not be pleaded initially at the time of institution of the pleadings. 5. The application for amendment normally should be filed before the trial commence. 5. The application for amendment normally should be filed before the trial commence. The proviso to Order 6 Rule 17 CPC, however, extends a right in favour of a party to seek amendment, of course, satisfying the Court seized of the matter that despite due diligence averments sought to be incorporated by way of amendment, could not be pleaded at an appropriate stage when the plaint/written statement etc. were initially filed. 6. Now, coming to the case in hand, no doubt, the trial has already commenced because after settlement of issues the suit presently is at the stage of recording plaintiff''s evidence. It is only Joginder Singh (PW-1) , Central Head Teacher, who alone has been examined at this stage. As a matter of fact, in the statement of this witness, it has come on record that the name of plaintiff is Baldev Singh. The plaintiff, as such, had the occasion to seek amendment in the plaint only after this fact came to his notice. It is a separate matter that the name of Gopal Singh the plaintiff in the suit is Baldev Singh also, needs proof to be produced during the course of further proceedings in the suit. In the event of the application been allowed, the respondent-defendant would have an opportunity to file written statement to the amended pleadings. Even any additional issue(s) arise out of the amended pleadings, can also be pressed to be framed. At this stage, only the statement of one witness has been recorded. The said witness, if needs be, can be sought to be re-called for further cross-examination by either of the parties. Therefore, learned trial Judge should have taken into consideration such facts and circumstances and not swayed only by the fact that the application was filed after the commencement of trial. Learned trial Judge, however, has failed to appreciate this part of the controversy in its right perspective. The amendment as has been sought, being formal in nature, is also not going to change the nature of the suit in any manner whatsoever. The impugned order is not legally sustainable and the same, as such, is quashed. Consequently, the application for amendment is allowed. The amended plaint, if not filed, be now filed on the next date fixed in the suit by the trial Court, i.e. 31.03.2018. The impugned order is not legally sustainable and the same, as such, is quashed. Consequently, the application for amendment is allowed. The amended plaint, if not filed, be now filed on the next date fixed in the suit by the trial Court, i.e. 31.03.2018. Learned trial Judge to proceed further in the matter thereafter in the light of the observations hereinabove and also in accordance with law. The petition is accordingly disposed of, so also the pending application(s) , if any. An authenticated copy of this judgment, be sent to the trial Court, for compliance.