Gurmit Singh vs Nirmal Singh and Others

L.N. Mittal, J.—Gurmit Singh legal representative of defendant no. 1 Gurmail Kaur since deceased has filed this revision petition under Article 227 of the Constitution of India impugning order dated 28.2.2011 Annexure P/5 passed by the trial court thereby allowing application Annexure P/3 filed by respondents no. 1 and 2/plaintiffs for amendment of plaint Annexure P/1. In the plaint, plaintiffs have challenged sale deed dated 21.1.2004 allegedly got executed by defendant no. 1 from plaintiffs and proforma defendants no. 2 to 4 by fraud. Plaintiffs claimed themselves to be owners in possession of the suit land and also claimed permanent injunction.

In amendment application, the plaintiffs alleged that defendant no. 1 had taken possession of the suit land on the basis of the aforesaid sale deed, but inadvertently the plaintiffs did not claim relief of possession of the suit land in the plaint. Accordingly, by amendment of plaint, the plaintiffs have sought relief of joint possession of the land by making necessary consequential amendment.

Defendant no. 1 by filing reply Annexure P/4 opposed the amendment application and controverted the averments made therein. It was pleaded that the plaintiffs cannot be permitted to fill up lacuna by amendment at the stage of rebuttal evidence and arguments.

Learned trial court allowed the amendment application Annexure P/3 vide order Annexure P/5 which is under challenge in this revision petition.

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

Counsel for the petitioner contended that the application for amendment of plaint was filed at the stage of rebuttal evidence and arguments and therefore, it could not have been allowed.

On the other hand, counsel for the respondent no. 1 contended that if the proposed amendment of plaint is not allowed, the suit would not be maintainable in the present form and consequently, the plaintiffs would have to withdraw the suit with liberty to file fresh suit and therefore, amendment of plaint has been rightly allowed by the trial court.

I have carefully considered the matter. Application for amendment of plaint was filed at the stage of rebuttal evidence and arguments. However, in view of Order 6 Rule 17 of the Code of Civil Procedure, amendment of plaint cannot be allowed after commencement of trial unless the party seeking amendment could not have sought the amendment before commencement of trial inspite of due diligence. In the instant case, defendant no. 1 in her written statement Annexure P/2 dated 19.9.2005 pleaded that defendant no. 1 is in possession of the suit land and also pleaded that suit in the present form is not maintainable. Inspite thereof, the plaintiffs did not seek amendment of plaint before commencement of trial to claim relief of possession. On the other hand, the plaintiffs moved amendment application Annexure P/3 which is dated 19.2.2011 at the stage of rebuttal evidence and final arguments. Consequently, in the instant case, it cannot be said that after exercising due diligence, the plaintiffs could not have sought the proposed amendment of plaint before commencement of trial. On the contrary, in view of written statement filed by defendant no. 1, plaintiffs after exercising due diligence could have sought the proposed amendment of plaint before commencement of the trial. Consequently, amendment of plaint sought at the stage rebuttal evidence and final arguments could not be allowed.

Resultantly, I find that the impugned order passed by the trial court is illegal and suffers from jurisdictional error. As a necessary consequence, the instant revision petition is allowed. Impugned order Annexure P/5 passed by the trial court is set aside and application Annexure P/3 filed by the plaintiffs for amendment of plaint stands dismissed. Civil miscellaneous application, if any pending, is disposed of as having been rendered infructuous.