CR No. 3398 of 2009 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Civil Revision No.3398 of 2009(O&M )
Date of Decision: October 14 , 2009
Kuldeep Singh and others ...........Petitioners
Versus
Surja Ram and another ..........Respondents
Coram: Hon'ble Mrs.Justice Sabina
Present: Mr.Robin Dutt, Advocate for the petitioners
Mr.Rahul Sharma, Advocate for respondent No.1
--
Sabina, J. (oral)
This revision petition is filed under Article 227 of the
Constitution of India for setting aside the order dated 1.5.2009 passed by the
Civil Judge, Junior Division Jagadhari and to allow the application
(Annexure P1) filed by the petitioner for amendment of the plaint.
Bhag Singh, plaintiff filed a suit for permanent injunction
restraining the defendant from raising any construction of house or any
other type of construction on any specific portion of the total land
measuring 32 kanal 00 marla, comprised in Khewat/Khatauni No.355/413
and 414, bearing Khasra numbers 48//16, 49//19, 20, 49//11, situated with
the revenue estate of village-Mandhar, H.B.No.333, Tehsil Jagadhri,
District Yamuna Nagar as per jamabandi for the year 1996-1997 and also
further restraining the defendant from cutting and removing the safeda trees
standing in the suit land belonging to the plaintiff, forcibly and illegally or
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in any manner whatsoever.
Notice of the suit was issued to the defendant. Parties led
their evidence in support of their case. Plaintiff has filed an application
under Order 6 Rule 17 of the Code of Civil Procedure with a prayer that he
may be permitted to amend the plaint as there was typographical error in the
plaint. In fact, in the plaint, it had been prayed that the defendant be
restrained from removing/cutting the safeda trees standing in the suit land
belonging to the plaintiff whereas at the spot poplar trees were standing.
Vide the impugned order dated 1.5.2009, the said application was
dismissed. Hence, the present revision petition.
Learned counsel for the petitioner has argued that the
application for permission to amend the plaint was liable to be allowed as
the plaintiff did not want to lead any further evidence in support of his case.
In fact, in place of safeda trees, plaintiff wanted to mention that poplar trees
were standing at the spot.
Learned counsel for the respondents, on the other hand, has
averred that the application was not maintainable under Order 6 Rule 17 of
the Code of Civil Procedure. Moreover, in the written statement, defendant
had averred that the poplar trees were standing on the spot yet no efforts
were made by the plaintiff to amend the plaint at that stage.
Order 6 Rule 17 of the Code of Civil Procedure reads as
under:-
” 17.Amendment of pleadings.-The Court may at any stage of the
proceedings allow either party to alter or amend his pleadings in
such manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the purpose of
CR No. 3398 of 2009 3determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed
after the trial has commenced, unless the Court comes to the
conclusion that in spite of due diligence, the party could not have
raised the matter before the commencement of trial”
The case of the plaintiff was that the defendant be restrained
from cutting/removing the safeda trees. The defendant, at the time of filing
the written statement, averred that in fact, the poplar trees planted by him
were in existence at the spot. The said written statement was filed on
20.10.2003. Thereafter, the issues were framed and parties led their
evidence. The application for permission to amend the plaint was moved at
the rebuttal stage. In the facts and circumstances of the present case, it
cannot be said that despite due diligence, plaintiff could not rectify the
mistake committed by him because at the time of filing of the written
statement itself it had come to the notice of the plaintiff that, in fact, poplar
trees were standing at the spot yet no effort was made to amend the plaint by
the plaintiff. In these circumstances, the trial Court had rightly dismissed
the application filed by the plaintiff in view of the provisions of Order 6
Rule 17 of the Code of Civil Procedure.
The impugned order does not suffer from any material
illegality or irregularity which may warrant interference in exercise of
revisional jurisdiction under Article 227 of the Constitution of India.
Dismissed
(Sabina)
Judge
October 14, 2009
arya
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