IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 2789 of 2009 (O & M)
Date of decision:- 28.07.2009.
Tarun Kumar ...Petitioner
Versus
Dhan Kaur @ Dhanno and another ...Respondents
CORAM: HON’BLE MR. JUSTICE A.N.JINDAL
Present:- Mr. Vikrant Hooda, Advocate
for the petitioner.
None for the respondents.
A.N.JINDAL J. (Oral)
The petitioner is aggrieved against the order dated 04.4.2009
passed by Additional Civil Judge (Sr. Division) Bahadurgarh whereby the
application filed by the petitioner for amendment of the plaint was declined.
The plaintiff-petitioner filed a suit for declaration with
consequential relief of permanent injunction. Defendant Nos.1 and 2 have
no concern with the suit land in any manner. Defendant No.1 Dhan Kaur
had already relinquished her rights in favour of defendant No.2 by way of
civil court judgment and decree dated 29.07.1993 and in return, defendant
No.2 relinquished all the rights in favour of the petitioner vide decree dated
22.12.1995 but due to some unavoidable circumstances the relevant entries
could not be got corrected in favour of the plaintiff. Resultantly, Dhan Kaur
remained recorded as owner in the revenue record. By getting benefit of
those wrong entries, Dhan Kaur had wrongly filed a suit for declaration with
a consequential relief of permanent injunction against defendant No.2 and
obtained decree on 08.10.2003 in case titled as Dhan Kaur vs. Taqdir Singh
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by way of fraud. As such, the said judgment and decree is a result of fraud
and collusion . Now, by way of amendment, the petitioner wants to
challenge the judgment and decree dated 08.10.2003.
Despite service, none has put in appearance on behalf of
respondents. The suit is at the very threshold of trial as the evidence is yet
to commence. The trial court dismissed the application merely on the
ground that the application is not maintainable when the trial has
commenced. Anyway, proviso of Order 6 Rule 17 of CPC does not create
absolute bar for amendment of the pleadings. Relevant Order 6 Rule 17 is
extracted hereunder:-
“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 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.”
From the perusal of the order, it transpires that the court may
not allow the amendment if it comes to the conclusion that in spite of due
diligence, the party could not have raised the plea before the
commencement of trial. The court has not made any such observations that
amendment could not be made on account of complete negligence of the
plaintiff or the plaintiff was in the knowledge of the said documents, which
he wants to plead, since earlier.
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Anyway, while sitting as the supervisory authority, and
constructing scenario of an illiterate poor litigants coming to the courts at
the grass root with a list to be adjudicated by the courts of law. The
institution of the pleadings depends upon the caliber of the lawyer to whom
he meets and the sense and understanding of the litigant for exploring the
facts before such lawyer. The Indian society is replete with illiteracy,
backwardness, shortsightedness, shyness, timidness and poverty, therefore,
the chances of exploring all the facts and documents in the first go remains
dim and as such in order to overcome the problems human memory and for
poor intelligency, the legislature in its wisdom provided for amendment of
the pleadings, if the litigant comes to know about much facts later on.
Keeping in view the legislature intent courts should be liberal enough to
allow all amendment unless the court is of the opinion that:-
(i) the amendment sought would change the nature of the suit.
(ii) the application has been filed just to prolong the litigation.
(iii) It has been sought with an intention to withdraw the admissions
but is not for exploring them away.
(iv) If Party raises consistent contradictory and mutually destructive
allegations of facts.
(v) If the proposed amendment causes prejudice to the other side
which cannot be compensated with costs.
(vi) If the amendment sought substitutes one cause of action or the
nature of the claim for another in the original plaint or change
the subject matter of the controversy in the suit.
After thoroughly examining the facts and circumstances, it
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transpires that the present case is at the very thresh hold of the trial and
there is no intention of the parties to delay the same and cause would be
defeated if the amendment is not allowed and the amendment so sought is
essentially necessary, and if not allowed could stand in the way of the party
seeking amendment. Thus the courts sitting at the grass root are concerned
to impart justice to the poor, illiterate, layman litigants should provide full
opportunity to bring each piece of evidence, which may enable the Court to
pronounce the judgment. The law relating to amendment before the Courts
are at the grass root is liberal and becomes stricter and stricter at the higher
levels. The trial court has not taken note of the aforesaid aspects and real
spirit of law pertaining to amendment. Resultantly, I accept the petition and
set aside the impugned order and permit the petitioner to amend the plaint
accordingly.
July 28, 2009 (A.N.JINDAL) vj JUDGE