Bhupinder Singh And Anr vs Hardev Singh And Ors
2022 Latest Caselaw 16170 P&H

CR No.4825 of 2022 (O&M)                                                     -1-



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       IN THE HIGH COURT OF PUNJAB & HARYANA
                      AT CHANDIGARH


                                             CR No.4825 of 2022 (O&M)
                                             Date of decision: 08.12.2022

Bhupinder Singh and another
                                                                   ..... Petitioners
                                          versus
Hardev Singh and others
                                                                ..... Respondents

CORAM: HON'BLE MRS. JUSTICE MANJARI NEHRU KAUL

Present: Mr. Harminder Singh, Advocate for the petitioners.

MANJARI NEHRU KAUL J. (Oral)

The petitioners have filed the present petition under Article 227 of

the Constitution of India for setting aside the order dated 29.09.2022 (Annexure

P-5) passed by the learned Civil Judge (Junior Division), Batala vide which an

application filed by them under Order 6 Rule 17 read with Section 151 CPC for

amendment of the plaint, was dismissed.

Learned counsel for the petitioners inter alia submits that the trial

Court while passing the impugned order failed to appreciate that the proposed

amendments are necessary to elucidate and elaborate the stand already taken by

the petitioners in the plaint. He further submits that the counsel for the

petitioners while preparing the case, felt the necessity to amend the plaint and

since foundation of the facts sought to be incorporated by way of the proposed

amendment already exist in the plaint, i.e., the factum of partition on the basis of

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the Salasnamna dated 09.11.2003, the respondents would not be in any manner

adversely affected by the proposed amendment.

Learned counsel still further submits that though the Salasnama

had been duly attested by all the parties including the respondents, however, its

execution had been disputed by the respondents in the written statement. Hence,

in the circumstances, the proposed amendment would be necessary for the just

and effective adjudication of the dispute between the parties. In support thereof,

learned counsel for the petitioners has relied upon judgments of Hon'ble the

Supreme Court passed in "Prithi Pal Singh and another vs. Amrik Singh and

others", 2013(9) SCC 576; "Mahila Ramkali Devi and others vs. Nandram (D)

Thr. Lrs and others", 2015(3)SCC 132; "Varun Pahwa vs. Mrs. Renu

Chaudhary", 2019(2) RCR (Civil) 383; "State of Bihar and others vs. Modern

Tent House and anr", 2017(8) SCC 567; "M/s Chakreshwari Construction Pvt.

Ltd. vs. Manohar Lal", 2017(5) SCC 212 and "Mount Mary Enterprises vs.

M/s Jivratna Medi Treat Pvt. Ltd.", 2015(4) SCC 182.

I have heard learned counsel for the petitioners and perused the

relevant material on record.

Before proceeding further, it would be relevant to reproduce Order

6 Rule 17 CPC, which is as follows:

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 is 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

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party could not have raised the matter before the commencement of trial."

It is perspicious from a bare reading of the proviso to Order 6 Rule

17 CPC that once the trial has commenced, amendment of pleadings should not

ordinarily be allowed unless and until the parties seeking such amendment are

able to show that despite exercise of due diligence, the proposed amendment

could not have been sought before the commencement of the trial.

Hon'ble the Supreme Court in Salem Advocate Bar Association vs. Union of

India, 2005 (3) RCR (Civil) 530 has held as under:-

"27. Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless 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 proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision."

Further, in Vidyabai and others vs. Padmalatha and another,

2009(2) SCC 409, the Hon'ble Supreme Court has also held as under:

"14. It is the primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed.

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However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged herein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint."

Undoubtedly, the Courts should adopt a liberal approach in

allowing all such amendment of pleadings which may be necessary for just and

effective adjudication of the dispute between the parties, however, at the same

time, the Courts cannot be expected to turn a blind eye to any prejudice or

injustice which could be caused to the opposite party while allowing any such

amendment of pleadings.

Adverting to the instant case, the application under Order 6 Rule

17 CPC was moved by the petitioners when the defendants' evidence was under

way, i.e., much after the commencement of the trial.

The petitioners have not even put forth any satisfactory explanation

while moving the application under Order 6 Rule 17 CPC as to why the proposed

amendment was not sought earlier, more so, when admittedly all the facts were

well within their knowledge at the time of the institution of the suit. Merely

because the counsel representing them before the trial Court felt the need to seek

amendment while preparing the case would not be a sufficient ground to allow

the application, rather, it clearly shows lack of exercise of due diligence. Thus,

allowing any amendment at such a belated stage, when the trial is on the verge of

conclusion, would definitely be prejudicial to the opposite party.

The case laws relied upon by learned counsel for the petitioners

would not come to his rescue as the petitioners have miserably failed to satisfy

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this Court as to why the proposed amendment could not be sought prior to the

commencement of trial despite exercise of due diligence.

This Court is therefore not inclined to invoke its revisional

jurisdiction under Article 227 of the Constitution of India. The instant petition,

being devoid of any merit, is dismissed.

                                               (MANJARI NEHRU KAUL)
08.12.2022                                               JUDGE
rittu
             Whether speaking/reasoned:                Yes/No
             Whether reportable:                       Yes/No




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