Punjab-Haryana High Court
Mandip Kumar And Ors vs Surinder Ram @ Surinder Singh on 8 December, 2023
Author: Karamjit Singh
Bench: Karamjit Singh
Neutral Citation No:=2023:PHHC:157460
CR-5640-2018 [1] 2023:PHHC:157460
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR-5640-2018
Reserved on 15.11.2023
Date of decision: 08.12.2023
Mandeep Kumar and others ...Petitioners
Versus
Surinder Ram @ Surinder Singh ...Respondent
CORAM: HON'BLE MR. JUSTICE KARAMJIT SINGH
Argued by: Mr. Nitin Thatai, Advocate and
Ms. Monika Thatai, Advocate for the petitioners.
Mr. Navkesh Singh, Advocate for the respondent.
****
KARAMJIT SINGH, J. (ORAL)
1. The present petition has been filed by the petitioners/defendants
under Article 227 of Constitution of India, seeking quashing of order dated
04.08.2018 Annexure P-4 passed by the Court of Civil Judge (Junior
Division), Ludhiana, whereby an application filed by respondent/plaintiff
under Order 6 Rule 17 CPC for amendment of the plaint has been allowed in
civil suit titled Surinder Ram @ Surinder Singh Vs. Mandeep Kumar and
others.
2. The brief facts of the case of respondent/plaintiff are that he
purchased suit property situated in Village Mundian Kalan, Tehsil and
District Ludhiana, vide agreement to sell dated 04.10.2009 from Bhajan
Kaur and thereafter, he raised construction therein. The respondent/plaintiff
being owner and in possession of the suit property on the basis of full and
final agreement to sell dated 04.10.2009 filed civil suit titled Surinder Ram
1 of 7
Neutral Citation No:=2023:PHHC:157460
CR-5640-2018 [2] 2023:PHHC:157460
Vs. Jaswant Kaur @ Kulwant Kaur etc. bearing No.102 of 2010 against
petitioners No.2 & 3 with regard to aforesaid property to restrain them from
interfering into peaceful possession of the respondent/plaintiff over the suit
property. That petitioner No.1 Mandeep Kumar filed civil suit titled
Mandeep Kumar Vs. Surinder Singh @ Surinder Ram for grant of decree for
specific performance of agreement to sell dated 17.04.2009 alleged to be
executed by respondent/plaintiff in favour of said Mandeep Kumar. That
actually, no such agreement to sell dated 17.04.2009 was ever executed by
respondent/plaintiff in favour of any person including Mandeep Kumar and
that the said agreement to sell dated 17.04.2009 is forged and fabricated
documents and is even otherwise, result of fraud. That later on
respondent/plaintiff was illegally deprived of the possession of the suit
property which is now being in illegal possession of the petitioners and
respondent/plaintiff sought recovery of Rs.2,88,000/- on account of illegal
occupation of the suit property by the petitioners for the period from
16.08.2013 to 15.08.2016 at rate of Rs.8,000/- per month along with interest.
Accordingly, suit for recovery has been filed by respondent/plaintiff against
the petitioners.
3. The suit was contested by the petitioners and they filed written
statement and thereafter, issues were settled by the trial Court and after
recording of certain evidence, respondent/plaintiff filed an application for
amendment of the plaint wherein amendment was sought on the ground that
in the original plaint date of agreement to sell which was executed by Bhajan
Kaur in his favour, was written as 04.10.2009 in place of 04.11.2009 due to
typographical mistake. The application for the amendment of the plaint was
2 of 7
Neutral Citation No:=2023:PHHC:157460
CR-5640-2018 [3] 2023:PHHC:157460
contested by the petitioners. The learned trial Court allowed the said
application vide order dated 04.08.2018 subject to cost of Rs.1,000/-.
4. Being aggrieved, the petitioners have filed the present petition.
5. I have heard the counsel for the parties.
6. The counsel for the petitioners submits that by way of
amendment the respondent intends to take plea that agreement to sell
executed by Bhajan Kaur is dated 04.11.2009 and was not executed on
04.10.2009 as has been pleaded in the original plaint. The counsel for the
petitioners further submits that even in criminal complaints lodged by the
respondent prior to filing of the suit, the date of said agreement was written
as 04.10.2009.
7. The counsel for the petitioners has further argued that the
application for amendment of the plaint was filed not just after the
commencement of trial but even after the recording of substantial evidence.
It has been further contended that in the light of the proviso to Order 6 Rule
17 CPC, the said application for amendment of the plaint was not
maintainable at the belated stage of the trial. It has been further argued that
the agreement in question was relied upon by the respondent/plaintiff in the
plaint and he was fully aware about the date of its execution from the very
beginning but did not move any such application for rectification of alleged
typographical mistake at the earliest. That thus, respondent/plaintiff has
failed to establish that in spite of due diligence he could not have raised the
matter before the commencement of trial. It is further contended that the
proposed amendment is going to change the nature and character of the suit
and further prejudice the defence already taken by the petitioners. The
3 of 7
Neutral Citation No:=2023:PHHC:157460
CR-5640-2018 [4] 2023:PHHC:157460
counsel for the petitioners further submits that the impugned order being
illegal deserves to be set aside. In support of his contentions counsel for the
petitioners has placed reliance upon decisions of Hon'ble Supreme Court in
Vidyabai Vs. Padamalatha 2009 (1) RCR (Civil) 763 and Ajendraprasadji
N. Pande & another Vs. Swami Keshavprakeshdasji N. and others 2007
(1) RCR (Civil) 481 wherein it was held that proviso appended to Order 6
Rule 17 CPC restricts the power of the Court and it puts an embargo on
exercise of its jurisdiction. The Hon'ble Supreme Court has further observed
that the Court's jurisdiction in a case of this nature is limited and
accordingly, the appeal was allowed and application seeking amendment of
written statement at belated stage was dismissed. Reference in this regard is
also made the decision of this Court in Rajeev Singla Vs. Manjeet Singh
others having CR No.7100 of 2016 decided on 26.10.2016 wherein also it
was held that as per proviso to Order 6 Rule 17 CPC no application for
amendment should be allowed after the commencement of the trial unless
the Court comes to the conclusion that in spite of due diligence the parties
could not have raised such amendment before the commencement of the
trial.
8. On the other hand, the counsel for the respondent/plaintiff while
supporting the impugned order has inter alia contended that the proposed
amendment is not going to change the nature of the suit in any manner. It
has been further contended that due to typographical mistake the date of
agreement to sell was mentioned as 04.10.2009 in place of 04.11.2009 in the
plaint and when the said clerical mistake came to notice of the respondent,
immediately thereafter, the application for amendment in plaint was filed
4 of 7
Neutral Citation No:=2023:PHHC:157460
CR-5640-2018 [5] 2023:PHHC:157460
and the same has been rightly allowed by the learned trial Court as the said
amendment is necessary for proper adjudication of suit. Prayer is made that
the present petition be dismissed being devoid of merits.
9. I have considered the submission made by counsel for the
parties.
10. In the original plaint respondent propounded one agreement to
sell dated 04.10.2009 executed by Bhajan Kaur in favour of the respondent
with regard to suit property. The respondent filed an application seeking
amendment of plaint on the ground that due to typographical mistake in the
original plaint, it was written that the aforesaid agreement to sell was
executed on 04.10.2009, whereas the actual date of execution of the said
agreement was 04.11.2009. From the perusal of the said agreement to sell,
the date of execution mentioned in the same is 04.10.2009 but it appears to
be typed on a stamp paper dated 03.11.2009. Be that as it may, it is settled
law that the merits of the amendment sought to be in corporated by way of
amendment are not to be adjudged at the stage of allowing prayer for
amendment as has been observed by the Hon'ble Supreme Court in Sampath
Kumar Vs. Ayyakannu and another (2002) 7 SCC 559.
11. The aforesaid agreement to sell is a material document for
proper adjudication of the suit. It appears that the proposed amendment is
necessary for determining the real question in controversy and even
otherwise is not time barred and if allowed will avoid multiplicity of
proceedings. Further, by the proposed amendment the respondent does not
seek to withdraw any clear admission made by the party which confers a
right on the other side. Furthermore, the proposed amendment will not
5 of 7
Neutral Citation No:=2023:PHHC:157460
CR-5640-2018 [6] 2023:PHHC:157460
change the nature of the suit or the cause of action nor will result into setting
up an entirely new case.
12. The petitioners have objected the proposed amendment mainly
on the ground that the same has been sought at the belated stage and without
exercise of due diligence as the respondent was fully aware about the date of
execution of agreement to sell even at the time of filing of the suit and thus,
the proposed amendment is hit by proviso to Order 6 Rule 17 CPC.
Admittedly, the application for amendment was filed by respondent for
rectification of typographical mistake with regard to date of agreement to
sell which as per him was wrongly typed as 04.10.2009 in place of
04.11.2009. It is the plea of the respondent that he came to know about the
said typographical mistake during the pendency of the suit and immediately,
thereafter, he filed necessary application seeking amendment of the plaint.
This Court is of the view that such type of clerical mistake can be corrected
at any time before passing of the final judgment, it being necessary for
determining the real controversy between the parties. Further the proposed
amendment is not going to cause in justice or prejudice to the other side.
Power to allow the amendment is wide and can be exercised at any stage of
proceedings, if the same is required in the interest of justice. The purpose of
allowing such like amendment is to minimize litigation and is required for
effective and proper adjudication of subject matter in dispute.
13. The Hon'ble Apex Court in Civil Appeal No.5909 of 2022 Life
Insurance of Corporation of India Vs. Sanjeev Builders Private Limited
and another decided on 01.09.2022 has held that in dealing with a prayer for
amendment of pleadings, the Court should avoid a hyper technical approach
6 of 7
Neutral Citation No:=2023:PHHC:157460
CR-5640-2018 [7] 2023:PHHC:157460
and is ordinarily required to be liberal especially where the opposite party
can be compensated by costs.
14. In view of the facts and settled position of law as described
above, no ground is made out to interfere in the impugned order whereby the
application filed by respondent for amendment of the plaint was allowed
subject to costs.
15. Consequently, the revision petition is hereby dismissed being
devoid of merits.
08.12.2023 (KARAMJIT SINGH)
Yogesh JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
Neutral Citation No:=2023:PHHC:157460
7 of 7
