Punjab-Haryana High Court
Sunil And Others vs Jai Prakash And Another on 5 November, 2012
Author: L.N. Mittal
Bench: L.N. Mittal
Civil Revision No. 3147 of 2012 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Revision No. 3147 of 2012
Date of decision : November 02, 2012
Sunil and others
....Petitioners
versus
Jai Prakash and another
....Respondents
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. Babbar Bhan, Advocate for
Mr. Vinod S. Bhardwaj, Advocate, for the petitioners
Mr. Jatin Hans, Advocate, for the respondents
L.N. Mittal, J. (Oral)
Aggrieved by order dated 19.4.2012, Annexure P/1 passed by the trial court, defendants have filed this revision petition under Article 227 of the Constitution of India to challenge the said order whereby application Annexure P/2 moved by respondents/plaintiffs for amendment of plaint has been allowed.
Plaintiffs have filed suit for permanent injunction restraining the defendants from creating charge by alienation in any manner and from Civil Revision No. 3147 of 2012 -2- raising construction in specific portion of land out of the joint suit land mentioned in the plaint and from changing nature of the suit land without partition thereof.
By way of amendment of plaint, the plaintiffs also want to seek relief of mandatory injunction directing the defendants to remove the illegal construction raised by them over part of the suit land adjacent to Abadi alleging that the said illegal construction of school building was raised over valuable part of the suit land in absence of the plaintiffs and the said construction is liable to be removed.
Defendants by filing reply Annexure P/3 controverted the amendment application.
Learned trial court vide impugned order Annexure P/1 allowed the application for amendment of plaint subject to payment ` 500/- as costs. Feeling aggrieved, the defendants have filed the instant revision petition.
I have heard learned counsel for the parties and perused the case file.
Counsel for the petitioners contended that the petitioners in their written statement dated 12.8.2008 pleaded the construction of school already raised by them in part of the suit land but still application Annexure P/2 for amendment of plaint was moved on 22.9.2011, more than 3 years after the filing of the written statement, and was moved after Civil Revision No. 3147 of 2012 -3- commencement of trial and therefore, it could not be allowed.
On the other hand, counsel for the respondents contended that the respondents while filing suit had narrated all the facts to their counsel who, however, did not seek relief of mandatory injunction in the original plaint, necessitating the amendment application which has been rightly allowed.
I have carefully considered the rival contentions. At the outset, it has to be noticed that at the time of motion hearing on 23.5.2012, counsel for the petitioners stated that no replication was filed to the written statement. However, counsel for the respondents states that replication dated 19.3.2009 has been filed by the respondents.
Contention raised by counsel for the respondents that fault was of the counsel of the respondents/plaintiffs and therefore, they should not suffer on account of fault of their counsel cannot be accepted because no such plea was even raised in the amendment application Annexure P/3. It has nowhere been pleaded in the amendment application that all the facts were narrated to the counsel who, however, did not take this plea in the original plaint. Even otherwise, on the ground of alleged fault of counsel, amendment cannot be allowed because if amendment is allowed on this ground, then no application for amendment of pleading can be dismissed because in every case, such a ground can be taken to seek amendment of the Civil Revision No. 3147 of 2012 -4- pleading.
In the instant case, amendment application was moved after commencement of the trial of the suit. In view of Order 6 Rule 17 of the Code of Civil Procedure (in short, CPC), amendment of pleading could not be allowed after commencement of trial. In the instant case, it cannot be said that even after exercise of due diligence, plaintiffs could not have raised this plea before commencement of trial. On the contrary, if the respondents had exercised even slightest diligence, they could have taken this plea much before commencement of trial because this fact of construction raised by the defendants in part of the suit land was specifically pleaded in the written statement. The plaintiffs should have pleaded this fact in the plaint itself but they did not do so and thus, suppressed this material fact in the plaint. In replication, it is submitted by counsel for the respondents, it has been pleaded that the aforesaid construction is illegal. Thus, the said construction pointedly came to the notice of the plaintiffs from the written statement of the defendants and the said plea was responded to by the plaintiffs in the replication, but inspite thereof, even at that stage, the plaintiffs did not think it appropriate to seek amendment of plaint for claiming relief of mandatory injunction as well for removal of the said construction. Consequently, in these circumstances, proposed amendment of plaint sought long after commencement of trial could not be Civil Revision No. 3147 of 2012 -5- allowed.
Impugned order of the trial court is, thus, patently illegal and suffers from jurisdictional error. Trial court has exercised jurisdiction, to allow amendment of plaint, which did not vest in it. Amendment of plaint could not have been allowed after commencement of trial in view of Order 6 Rule 17 CPC.
Accordingly, the instant revision petition is allowed. Impugned order Annexure P/1 passed by the trial court is set aside. Application Annexure P/2 moved by plaintiffs for amendment of plaint is dismissed.
( L.N. Mittal )
November 02, 2012 Judge
'dalbir'