Jaspal Kaur and Another vs Mohinder Singh and Others

L.N. Mittal, J.—Plaintiffs have filed this revision petition under Article 227 of the Constitution of India impugning order dated 22.01.2013 Annexure P-1 passed by the trial Court whereby application for amendment of plaint filed by the petitioners stands dismissed. Before proceeding further, it has to be noticed that the petitioners have not placed on record either the plaint or the amendment application or the reply thereto filed by the defendants.

It is unfortunate litigation among family members. Plaintiffs and defendants Nos. 1 to 4 are sons and daughters of Dial Singh whereas defendants No. 5 and 6 are sons of defendants No. 1 and 2 i.e. grand-sons of Dial Singh. The plaintiffs (a daughter and a son of Dial Singh) have filed suit alleging that unregistered Will dated 25.09.2004 allegedly executed by their father Dial Singh in favour of his wife Charan Kaur is false, forged and fabricated document and consequent mutation No. 4810 sanctioned on the basis of said Will is also null and void. It has also been alleged that consequent sale deed dated 23.08.2006 of the suit land executed by Charan Kaur (since deceased) in favour of defendants No. 5 and 6 and resultant mutation No. 4882 in their favour are also illegal, null and void. Plaintiffs have accordingly sought declaration that they are owners in possession of 2/6th share of the suit land on the basis of natural inheritance.

By amendment of plaint, the plaintiffs want to plead that during proceedings of inheritance mutation No. 4810 of Dial Singh on the basis of Will dated 25.09.2004 in favour of his wife Charan Kaur, compromise dated 04.04.2006 Annexure P-2 was arrived at between the parties and according to said compromise, the land left by Dial Singh was to be mutated in favour of Charan Kaur who was then to transfer 8 bighas land in favour of plaintiff No. 2. Consequently, the plaintiffs by pleading these facts also want to claim alternative relief of mandatory injunction directing the defendants to execute registered sale deed of 8 bighas land in favour of plaintiff No. 2 pursuant to said compromise.

The defendants opposed the amendment application alleging that the same has been moved after commencement of trial. The plaintiffs had already examined one witness and had availed of four opportunities for their evidence. The facts sought to be pleaded by amendment were already in the knowledge of plaintiffs.

Learned trial Court vide impugned order Annexure P-1 has dismissed the plaintiffs'' application for permanent injunction. Feeling aggrieved, plaintiffs have filed this revision petition to challenge the said order.

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

Counsel for the petitioners contended that the petitioners/plaintiffs have already pleaded compromise dated 04.04.2006 Annexure P-2 in the original plaint and they simply want to add the alternative relief of mandatory injunction regarding transfer of 8 bighas land in favour of plaintiff No. 2 as per said compromise and, therefore, proposed amendment of plaint should be allowed.

The aforesaid contention cannot be accepted. As noticed hereinbefore, neither the original plaint nor amendment application has been placed on record. On the other hand, perusal of impugned order reveals that the plaintiffs, besides adding the alternative relief of mandatory injunction and consequential amendment in valuation of the suit etc., also want to add a lengthy paragraph 6-A in the plaint as reproduced in the impugned order. The plaintiffs in said paragraph 6-A want to plead the alleged compromise and other facts. However, the facts pleaded in the original plaint would remain part of pleadings of the plaintiffs, in spite of dismissal of their amendment application.

Admittedly the amendment application was moved after commencement of trial. The plaintiffs had already availed of four opportunities for their evidence and had also examined one witness before filing the amendment application. However, in view of 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 the trial in spite of exercise of due diligence. In the instant case, it cannot be said that in spite of exercise of due diligence, the plaintiffs could not have sought amendment of plaint before commencement of trial to raise the plea which is now sought to be raised. All the alleged facts sought to be pleaded by amendment of plaint were already in the knowledge of the plaintiffs. In fact, the plaintiffs'' claim in the original suit is contrary to the alleged compromise. By the alleged compromise, the plaintiffs admitted the Will executed by Dial Singh in favour of Charan Kaur subject to transfer of 8 bighas land in favour of plaintiff No. 2 and consequently mutation No. 4810 was sanctioned in favour of Charan Kaur. However, in the suit, the plaintiffs have now challenged the Will in favour of Charan Kaur and also the consequent mutation No. 4810. Thus plaintiffs by filing the suit themselves backed out of the alleged compromise and proposed amendment of plaint is result of their dishonesty. For the reasons aforesaid, I find that proposed amendment of plaint has been rightly declined by the trial Court. Impugned order of the trial Court does not suffer from any perversity, illegality or jurisdictional error so as to call for interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. The revision petition is bereft of any merit and is accordingly dismissed.