Sarabjit Singh vs Amandeep Singh and Others

L.N. Mittal, J.—Defnednat No. 1-Sarabjit Singh has invoked the jurisdiction of this Court under Article 227 of the Constitution of India by

filing this revision petition to assail order dated 03.05.2011 passed by learned Civil Judge (Junior Division), Abohar thereby allowing application

Annexure P-3 moved by respondents No. 1 to 3/plaintiffs for amendment of plaint Annexure P-1. At the outset, it may be mentioned that

proforma respondent No. 6 has not been served. However, respondent No. 6 who is defendant No. 4 in the trial Court is ex parte in the trial

Court. Accordingly service of proforma respondent No. 6 in the revision petition is dispensed with.

Respondent No. 3/plaintiffs have filed suit alleging that Har Kaur was owner of the suit properties described in paragraphs A, B, C, D and I of

the plaint and plaintiffs along with defendants No. 2 to 7 are the legal heirs of Har Kaur and consequently plaintiffs are having 1/7th share in the suit

property. In the body of the plaint, it has also been alleged that Har Kaur did not execute any Will during her life time. The Will appears to have

been set up by defendant No. 1

In application Annexure P-3 moved by plaintiffs for amendment of plaint, it is pleaded that when the plaintiffs went to Patwari for getting relevant

revenue record for purpose of evidence, the Patwari disclosed that only properties of paragraphs B and I were allotted to Har Kaur whereas the

remaining properties of paragraphs A, C and D were inherited by Har Kaur on the basis of Will dated 30.04.1982 executed in her favour by her

husband Sadda Singh but the said properties were ancestral properties of Sadda Singh and, therefore, he could not bequeath the same to Har

Kaur. Necessary amendments in this regard are, therefore, sought to be made in the plaint.

Defendant No. 1-petitioner by filing reply Annexure P-4 opposed the amendment application and controverted the averments made in the

application.

Learned trial Court vide impugned order dated 03.05.2011 has allowed proposed amendment of plaint subject to costs of `1,000/-. Feeling

aggrieved, defendant No. 1 has filed this revision petition.

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

Counsel for the petitioner vehemently contended that proposed amendment of plaint could not be allowed after commencement of trial in view

of Order 6 Rule 17 of the CPC (in short, CPC). It was pointed out that plaintiffs moved the amendment application after availing of many

opportunities for their evidence and when it was last opportunity for their evidence and the amendment application was thus moved after

commencement of the trial. On the other hand, counsel for respondents No. 1 to 3/plaintiffs contended that proposed amendment of plaint goes to

the very root of the case and is essential for proper adjudication of the lis and has, therefore, been rightly allowed on payment of costs. It was

pointed out that trial of the suit had not commenced because no evidence has yet been led.

I have carefully considered the rival contentions. It is undisputed that amendment application was moved after the plaintiffs had availed of some

opportunities for their evidence. Consequently, it is manifest that the amendment application was moved after commencement of trial. If the

plaintiffs in spite of availing opportunities for leading evidence, did not lead any evidence, it would not mean that trial has not commenced.

Order 6 Rule 17 CPC prohibits amendment of pleading after commencement of trial unless the party seeking amendment could not raise the

matter before commencement of trial in spite of due diligence. In the instant case, it cannot be said that the plaintiffs could not raise the plea sought

to be taken by amendment of plaint, before commencement of trial, in spite of due diligence. On the contrary, the plaintiffs have themselves

pleaded in the plaint that they learnt of these facts when they approached the Patwari for taking revenue record for the purpose of evidence.

However, the plaintiffs should have approached the Patwari and should have inspected the relevant revenue record before filing the suit if they had

exercised due diligence. In other words, the plaintiffs could have certainly raised this plea in original plaint i.e. before commencement of trial if they

had exercised due diligence. On the other hand, in the original plaint, it has been admitted that Har Kaur was owner of the suit properties.

However, by way of amendment of plaint, this admission is sought to be withdrawn regarding properties mentioned in paragraphs A, C and D in

the head-note of the plaint. This cannot be permitted by amendment of plaint. In the original plaint, the plaintiffs claimed their share as legal heirs of

Har Kaur owner of the properties, but now by amendment of plaint, the plaintiffs claim themselves to be heirs of Sadda Singh qua their shares in

properties No. A, C and D. Thus by proposed amendment of plaint, the plaintiffs want to change the very basis of the suit. This is not permissible.

It may be noticed that the trial Court in the impugned order observed that proposed amendment of plaint is based on subsequent events. This

approach of the trial Court is completely perverse, erroneous and contrary to record. It is not even the case of the plaintiffs that proposed

amendment of plaint is based on any subsequent event. On the contrary, alleged facts sought to be pleaded by amendment of plaint already existed

since long before the filing of the suit. For the reasons aforesaid, I find that proposed amendment of plaint has been erroneously allowed by the trial

Court. It could not be done in view of Order 6 Rule 17 CPC. Impugned order of the trial Court, therefore, suffers from illegality and jurisdictional

error. Resultantly the instant revision petition is allowed. Impugned order dated 03.05.2011 of the trial Court is set aside. Application Annexure P-

3 moved by respondents No. 1 to 3/plaintiffs for amendment of plaint stands dismissed.