Punjab-Haryana High Court
Shailender Kumar vs Raj Kishan And Others on 31 March, 2009
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.3875 of 2007
Date of decision:31.03.2009
Shailender Kumar ...Petitioner
versus
Raj Kishan and others ...Respondents
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG.
Present: Mr. Onkar Singh, Advocate for the petitioner.
Mr. Ashwani Talwar, Advocate for respondent Nos.1 to 3.
Mr.Pawan Sharma, Advocate for respondent Nos.4, 5 and 8.
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RAKESH KUMAR GARG, J.
This is plaintiff's revision petition challenging the order dated 22nd July, 2007 whereby application under Order 6 Rule 17 filed by the petitioner for amendment of the plaint has been rejected.
As per the averments in this petition, petitioner had filed a suit for partition of the house in dispute and also for delivery of possession with consequential relief of permanent injunction and further restraining the respondents from alienating any portion of the house in dispute. In support of his case, the petitioner/plaintiff had set up an Adoption Deed dated 21.12.1995 executed in his favour.
The suit was filed on 21.11.1998. Issues were framed on 07.11.2001. Evidence of the parties was closed on 26.10.2006. Petitioner filed the present application on 10.04.2007 for amendment of the plaint that the Adoption Deed dated 21.12.1995 be treated as a Will Civil Revision No.3875 of 2007 -2- and thus by this amendment, he wanted to take an additional plea. The aforesaid application of the petitioner was rejected by the trial Court observing that the parties have already led evidence and the case is at the fag end and therefore, the amendment at this stage cannot be allowed.
Challenging the aforesaid order, learned counsel for the petitioner has vehemently argued that the power of the Court to allow an application for amendment of plaint is very wide, which is circumscribed by two factors i.e. the application must be bona fide and the same should not cause injustice to other side and it should not affect the right already accrued to the defendants. In support of his arguments, learned counsel for the appellant has relied upon a judgment of the Hon'ble Apex Court in the case of Peethani Suryanarayana & Anr. V. Repaka Venkata Ramana Kishore & Ors.-JT 2009(2) SC 549.
On the other hand, learned counsel for the respondent has vehemently argued that in view of the judgment of the Hon'ble Apex Court in Vidyabai & Ors V. Padmalatha & Anr.-2009(1) RCR (Civil) 763, the amendment cannot be allowed at this stage as the petitioner has failed to bring his case within the ambit of proviso to Order 6 Rule 17 C.P.C. as he failed to prove that despite diligence, he could not seek the amendment earlier.
From the facts of the case, it is not in dispute that the plea sought to be taken by the petitioner by way of amendment was available to him from the very beginning of the suit. It is also not the case of the petitioner that it was not to his knowledge that this plea was also available to him.
Civil Revision No.3875 of 2007 -3-
Even otherwise, at this stage allowing the petitioner to take the plea as proposed by him will amount to starting the trial de novo as if the petitioner is allowed to take the new plea necessarily the defendant has to be given an opportunity to file an amended written statement and also an opportunity to lead evidence to controvert the evidence placed by the petitioner on the record of the case.
Thus, I find that the application for amendment moved at the fag end of the case was not bona fide. Thus, the case is petitioner cannot be brought within the proviso of Order 6 Rule 17 and thus, relying upon the judgment of the Hon'ble Supreme Court in the case of Vidyabai & Ors. (supra), I find no merit in the revision and the same is dismissed.
(RAKESH KUMAR GARG) JUDGE 31.03.2009 sanjeev