Kishan Singh vs Shankar Singh

L.N. Mittal, J.—Plaintiff Kishan Singh has invoked the jurisdiction of this Court under Article 227 of the Constitution of India by filing the instant revision to assail order dated 20.7.2010, Annexure P/5, passed by learned Additional Civil Judge (Senior Division), Nakodar thereby dismissing application Annexure P/3 moved by plaintiff-petitioner for amendment of plaint Annexure P/1.

Plaintiff in the suit alleged that about nine years before filing of the suit, defendant-respondent Shankar Singh gave 3 marlas land comprised of khasra no. 21//4/2 (0-2) and 4/4/2 (0-1) in exchange of 3 marlas land given by the plaintiff to the defendant. By amendment of plaint, the plaintiff sought correction of khasra no. 21//4/2 to 21//4/1/2 alleging that there is clerical error in writing the said khasra number in para no. 1 of the plaint.

Defendant-respondent by filing reply Annexure P/4 opposed the aforesaid application. It was alleged that the application was belated and the application cannot be allowed in view of proviso to Order 6 Rule 17 of the CPC (in short, CPC) because the amendment application was moved after both parties have led their evidence i.e. after commencement of trial.

Learned trial court vide impugned order Annexure P/5 dismissed plaintiff''s application for amendment of plaint. Feeling aggrieved, the plaintiff has filed this revision petition.

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

Counsel for the petitioner contended that the petitioner himself was aged about 90 years and is now above 90 years and his counsel in the trial court Mr. Mohinder Paul Mahandru, Advocate through whom the suit was instituted was also suffering from some ailments and has also since died and therefore, error occurred in mentioning correct khasra number in the plaint and said error should be allowed to be corrected by amendment of plaint.

On the other hand, counsel for respondent contended that the defendant in written statement Annexure P/2 had pleaded that he has no concern with khasra no. 21//4/2 (mentioned in the plaint) and he is owner in possession of khasra no. 21//4/1/2 (0-2) besides another khasra number but inspite thereof, the amendment application was not moved at that stage. It was contended that after commencement of trial proposed amendment of plaint cannot be allowed in view of proviso to Order 6 Rule 17 CPC. Reliance in support of this contention has been placed on various judgments namely Vidyabai & Ors. Vs. Padmalatha & Anr., 2009 (1) Civil Court Cases 798; Rajkumar Gurawara vs. M/s S.K. Sarwagi & Co. Pvt. Ltd. & Anr., 2009(1) Civil Court Cases 001 (SC); Ajendraprasadji N. Pande & Anr. vs. Swami Keshavprakeshdasji N. & Ors., 2007(1) Civil Court Cases 500 (SC); Bahadur Singh & Anr. vs. Avtar Singh, 2007(3) Civil Court Cases 417 (P&H) and Inder Pal Singh vs Bankey Bihari, 2003(3) Civil Court Cases 707 (P&H).

I have carefully considered the rival contentions. There is no quarrel with proposition of law that in view of proviso to Order 6 Rule 17 CPC, amendment of pleadings cannot be allowed after commencement of trial court unless the party seeking amendment could not inspite of due diligence raise the matter before commencement of trial. However, in the instant case only clerical error in mentioning khasra number of the land is sought to be corrected. The said error occurred because the plaintiff - petitioner is very old and his counsel through whom suit was instituted was also allegedly suffering from some ailment and has since died.

Keeping in view all the peculiar facts and circumstances of the case, in my considered opinion, proposed amendment of plaint should be allowed notwithstanding that the amendment application was moved at belated stage i.e. long after commencement of trial. Defendant - respondent can be compensated by way of costs.

In view of the aforesaid, I find that impugned order of the trial court suffers from jurisdictional error because the trial court refused to exercise the jurisdiction which vested in it to allow proposed amendment of plaint. Accordingly, the instant revision petition is allowed. Impugned order Annexure P/5 passed by the trial court is set aside and application Annexure P/3 moved by plaintiff-petitioner for amendment of plaint is allowed and plaintiff-petitioner is permitted to make proposed amendment in the plaint subject to payment of Rs 2500/- as costs precedent.