Surinder and Another vs Rajinder and Others

L.N. Mittal, J.—Defendants no. 1 and 4 have invoked the jurisdiction of this Court under Article 227 of the Constitution of India impugning order dated 13.08.2013 (Annexure P-4) passed by the trial court, thereby dismissing application (Annexure P-3) filed by defendants no. 1 and 4 for amendment of their written statement (Annexure P-2). The petitioners alleged in their amendment application that in preliminary objection no. 7 of the written statement, it has been pleaded that Sarjo performed kareva marriage with Mange, after enforcement of the Hindu Succession Act (in short-the Act), but in fact, the said kareva marriage had taken place before enforcement of the Act and the word ''after'' is to be substituted with the word ''before'' as it was typographical error in the original written statement.

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

Counsel for the petitioners contended that amendment to correct typographical error can be allowed even at late stage of the suit, as held by this Court in the case of Monika Vs. Sandeep, . Reference was also made to Chapter 21 of the High Court Rules and Orders Vol. I, to contend that the amendment of pleading can be allowed at any stage.

I have carefully considered the matter.

There is no dispute with the proposition that the typographical error can be allowed to be corrected by amendment of pleading even after commencement of trial. However, the question in the instant case is whether the proposed amendment has been sought to correct typographical error or not.

Final arguments had been addressed in the suit by counsel for respondent no. 1-plaintiff and thereafter, the case was fixed for final arguments in the suit on behalf of defendants and it was at that stage that the amendment application (Annexure P-3) was filed by the petitioners. According 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 have raised the matter before commencement of trial even after exercise of due diligence. In the instant case, it is apparent that amendment application was moved by the petitioners after counsel for the plaintiff, during course of arguments, pointed out fatal infirmity in the case of the petitioners. It was pointed out that the defendants'' father Balwan was born on 01.01.1946, and therefore, he could not have been born out of alleged kareva marriage of Sarjo with Mange, after enforcement of the Act, which was enforced in the year 1956. Consequently, the petitioners cannot be allowed to fill up the aforesaid fatal lacuna in their case by amendment of written statement during the course of final arguments, even after plaintiff had concluded the final arguments in the suit. The proposed amendment of written statement cannot be said to be arising out of typographical error. Consequently, judgment in the case of Monika (supra) is not applicable to the instant case.

As regards Chapter 21 of Vol. I of the High Court Rules and Orders, the same refers to Order 6 Rule 17 CPC. However, Order 6 Rule 17 CPC, as it now exists, does not permit amendment of pleading after commencement of trial except when the party seeking amendment could not have raised it before commencement of trial, even after exercise of due diligence. In the instant case, it cannot be said that the petitioners, in spite of exercise of due diligence, could not have raised the proposed plea before commencement of trial. For the reasons aforesaid, I find that the amendment application (Annexure P-3), filed by the petitioners, has been rightly dismissed by the trial court. There is, therefore, no perversity, illegality or jurisdictional error in the impugned order of the trial court 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 lacks any merit and is accordingly dismissed in limine.