Civil Revision No. 2560 of 2008 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No. 2560 of 2008
Date of decision: 29.01.2009
Gurjit Singh Dhaba ...Petitioner
Versus
Gurdev Singh ...Respondent
CORAM: HON'BLE MR. JUSTICE S.D.ANAND.
Present: Mr. M.L.Saggar, Senior Advocate with
Ms. Taranjeet Kaur, Advocate for the petitioner
Mr. Sumeet Mahajan, Senior Advocate with
Mr. Amandeep Singh, Advocate for respondent no.1.
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S.D.ANAND, J.
The plaintiff-petitioner filed a suit for specific performance on
the basis of agreement dated 23.2.1993.
In the course of the written statement, a plea was taken by
defendant-respondent that the suit is not maintainable as “the property in
dispute still vests with Improvement Trust, Ludhiana who has not executed
any sale deed in favour of the defendant.”
Qua the impugned agreement, the averment made was that
“the plaintiff is guilty of changing/adding new terms in the agreement of
sale dated 23.2.1993.”
The evidence of the plaintiff-petitioner had already been
concluded and part of evidence had also been adduced on behalf of the
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defendant-respondent, when the plaintiff-petitioner filed the impugned
application (under Order 1 Rule 10 C.P.C. and under Order 6 Rule 17
C.P.C.) to obtain the leave of the Court to implead the Improvement Trust,
Ludhiana as a party.
Learned Trial Court negatived the plea by observing that the
plaintiff-petitioner having already concluded his evidence and defendant-
respondent also having led a part of the evidence, the former had not been
able to explain why he could not have raised that plea earlier with due
diligence.
Learned counsel for the petitioner-plaintiff argues that
allowance of the plea shall be in the interest of justice inasmuchas it shall
enable the Court to dispose of the controversy at the trial completely and
effactually.
The proviso of Order 6 Rule 17 C.P.C. categorically provides
that no application “for amendment shall be allowed after the trial has
commenced, unless the Court comes to conclusion that in spite of due
diligence, the party could not have raised the matter before the
commencement of trial.”
In the present case, the suit was filed on 3.6.1994 and the
written statement was filed on 26.11.1994. There was a preliminary
objection, in the course thereof, to the effect that the suit was bad on
account of non-joinder of necessary parties. The averment, made in the
context, was that the title of the property in suit still vests in the
Improvement Trust and that title therein had not been passed over to the
defendant/respondent. Issues, on the basis of the pleadings of the parties,
were framed on 16.1.1995. The evidence of the plaintiff-petitioner
concluded long ago. The impugned application came to be filed only on
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3.1.2007. The defendant-respondent had adduced on record a part of the
evidence. The plaintiff-petitioner did not at all make an endeavour to
explain why the amendment plea could not be filed earlier particularly when
the relevant plea had been taken in the written statement filed on
26.11.1994.
The allowance of the plea would be plain violation of proviso to
Order 6 Rule 17 C.P.C. A similar view was obtained by the Apex Court in a
judgment reported at Ajendraprasadji N. Pande & another Vs. Swami
Keshavprakeshdasji N. & others 2007 (1) CCC 500 (SC) and this Court
in judgment reported as Inder Pal Singh Vs. Bankey Bihari 2003 (3)
CCC 707.
In the light thereof, the petition is held to be denuded of merit
and is ordered to be dismissed.
January 29, 2009 (S.D.Anand) Pka Judge