Parkash Kaur vs Ranjit Kaur

L.N. Mittal, J.—Plaintiff-Parkash Kaur has filed this revision petition under Article 227 of Constitution of India assailing order dated 31.05.2013 passed by the trial Court thereby dismissing application Annexure P-2 filed by the plaintiff-petitioner for amendment of plaint Annexure P-1 instituted by her. The plaintiff has filed suit for mandatory injunction directing the defendant to handover vacant possession of the property on first floor of the disputed house. The plaintiff has also sought permanent injunction.

In the amendment application, the plaintiff alleged that the plaintiff in the plaint inadvertently claimed the relief of mandatory injunction instead of claiming the relief of possession. The plaintiff by amendment of plaint, therefore, wants to claim the relief of possession instead of mandatory injunction and wants to make consequential amendments relating to valuation and court fee etc. The defendant by filing reply Annexure P-4 controverted the averments made in the amendment application. Learned trial Court has dismissed plaintiff''s application for amendment of plaint. Feeling aggrieved, plaintiff has filed this revision petition to challenge the said order.

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

Counsel for the petitioner contended that by way of amendment, the plaintiff-petitioner simply wants to claim the relief of possession instead of relief of mandatory injunction and no further evidence is to be led by the plaintiff and therefore, proposed amendment of plaint should be allowed.

The aforesaid contention cannot be accepted. Defendant in the written statement had raised objection of maintainability of the suit in the present form as mentioned in reply Annexure P-4 to the amendment application. However, in spite thereof, the plaintiff at that stage did not seek to amend the plaint to claim the relief of possession in stead of relief of mandatory injunction. On the contrary, amendment application Annexure P-2 was moved at the stage of final arguments in the suit i.e. at the fag end of the trial, after six years of the filing of the suit. In view of proviso to Order 6 Rule 17 of the CPC (in short, CPC), amendment of pleading cannot be allowed after commencement of trial unless the party seeking amendment could not raise the plea before commencement of 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 plaintiff could not have sought amendment of plaint before commencement of trial. On the contrary, plaintiff was put to caution by the defendant by raising plea in the written statement that suit is not maintainable in the present form. In spite thereof, the plaintiff did not seek amendment of the plaint at that stage. Reason for filing suit for mandatory injunction instead of suit for possession of the suit property is not far to seek. The plaintiff by claiming mandatory injunction instead of possession, wanted to avoid payment of ad valorem court fee on market value of the suit property. The plaintiff, therefore, has to face the consequences of her cleverness in avoiding to pay court fee. Be that as it may, in view of mandatory provision of proviso to Order 6 Rule 17 CPC, proposed amendment of the plaint has been rightly declined by the trial Court. Impugned order of the trial court, therefore, does not suffer from any perversity, illegality or jurisdictional error so as to warrant interference by this Court in exercise of power of superintendence under Article 227 of Constitution of India. The revision petition is thus found to be meritless and is accordingly dismissed in limine.