Brij Mohan vs Gurdev Singh and Others

L.N. Mittal, J.—Petitioner-plaintiff by filing this revision petition under Article 227 of the Constitution of India has assailed order dated 27.09.2013 (Annexure P-7) passed by trial Court thereby dismissing application Annexure P-5 dated 26.07.2013 filed by plaintiff-petitioner for amendment of plaint (Annexure P-1). The plaintiff has alleged in plaint Annexure P-1 that the disputed site measuring 25'' X 65'' is owned by him and his brother proforma defendant No. 3. The plaintiff has sought relief of possession of the suit property.

In amendment application Annexure P-5, the plaintiff sought to claim alternative relief of separate possession by partition of the said suit property. Necessary facts in this regard are also sought to be pleaded by amendment.

The application was resisted by the defendant No. 1 by filing reply Annexure P-6, wherein averments made by plaintiff in amendment application were controverted.

I have heard counsel for the petitioner and perused the case file.

Counsel for the petitioner contended that proposed amendment of plaint is necessary in view of objections raised by defendants No. 1 and 2 in their written statement dated 30.07.2008 (Annexure P-2) and the plaintiff shall not lead any evidence after amendment of plaint and, therefore, proposed amendment of plaint should be allowed.

I have carefully considered the matter. Defendants No. 1 and 2 filed written statement dated 30.07.2008 but the plaintiff did not seek proposed amendment of plaint at that stage. On the other hand, the plaintiff filed application Annexure P-5 dated 26.07.2013 for amendment of plaint five years after the defendants No. 1 and 2 filed their written statement. There is no explanation whatsoever for this long delay. It is also worth mentioning that application Annexure P-5 was filed at the stage of rebuttal evidence and final arguments. According to proviso to Order 6 Rule 17 of the Code of Civil Procedure, 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, it cannot be said that in spite of due diligence, the plaintiff could not have sought amendment of plaint to plead the facts now sought to be pleaded by amendment of plaint, before commencement of trial. On the other hand, all the relevant facts were in the knowledge of the plaintiff since inception and defendants No. 1 and 2 had also raised relevant objection in their written statement Annexure P-2 and therefore, the plaintiff by exercising due diligence could have very well sought amendment of plaint before commencement of trial. However, the amendment of plaint was sought at the fag end of the trial which is not permissible in view of aforesaid mandatory provision. For the reasons aforesaid, I find that amendment application filed by plaintiff-petitioner has been rightly dismissed by the trial Court. There is no illegality, perversity 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 completely devoid of merit and is accordingly dismissed in limine.