Kuldeep Singh And Others vs Surja Ram And Another on 14 October, 2009

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
CR No. 3398 of 2009 2

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 3

determining 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
CR No. 3398 of 2009 4