Punjab-Haryana High Court
Kamalpreet Kaur vs Prem Kumar (Now Deceased) Through Lrs ... on 20 January, 2025
Neutral Citation No:=2025:PHHC:007799
CR-7308-2024 (O&M) - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
117 CR-7308-2024 (O&M)
Date of decision: 20.01.2025
Kamalpreet Kaur ...Petitioner.
Versus
Prem Kumar (since deceased) through LRs and another ....Respondents.
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CORAM: HON'BLE MRS. JUSTICE SUKHVINDER KAUR
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Present: Mr. L.S. Mann, Advocate
for the petitioner.
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Sukhvinder Kaur, J.
By way of present revision petition, the petitioner has
challenged order dated 20.09.2024 (Annexure P-6), passed by the trial
Court, vide which application filed by the petitioner under Order 6 Rule 17
CPC, was dismissed.
2. The brief facts relevant for adjudication of the present revision
petition are that the petitioner/ plaintiff filing a suit for recovery under
Order 7 Rule 2 CPC for an amount of Rs.2,72,000/- i.e. Rs.2,00,000 as
principal amount and Rs.72,000/- as interest @ 1% per month from the
period of 09.04.2020 to 08.04.2023, with the averments that deceased Prem
Kumar had good acquaintance with the petitioner and he on behalf of
respondent No.2 borrowed an amount of Rs.2,00,000/- from the petitioner/
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plaintiff. It was alleged that after death of Prem Kumar, his LRs are jointly
severally legally responsible/ liable to return the cheque amount to plaintiff.
Defendant No.2 i.e. firm belongs to deceased Prem Kumar and now it is
being running by LRs of Prem Kumar. It was alleged that in the month of
April, 2020, plaintiff asked defendant No.1 to return the said interest free
amount taken by defendant No.1 on behalf of defendant No.2 and on regular
demands of plaintiff, to discharge legally enforceable liability, defendant
No.1 issued cheque No.031765 dated 09.04.2020 of Rs.2,00,000/- in favour
of the plaintiff and defendant No.1 assured that it would be encashed on
presentation. When the same was presented, the said cheque was
dishonoured and received back unpaid alongwith memo dated 15.04.2020
with the remarks 'funds insufficient' meaning thereby that defendant was not
having sufficient funds in his bank account for encashment of the cheque
issued by defendant to the plaintiff. It was further alleged that the plaintiff
disclosed defendant No.1 about the fate of cheque and defendant No.1
requested the plaintiff not to take legal action and requested him to give
some days to arrange the money. Accepting his request, plaintiff did not take
any legal action against him. Thereafter, defendant No.1 kept on putting off
the matter on one pretext or the other, but failed to make payment of the
aforesaid amount to the plaintiff. Plaintiff repeatedly approached and
requested many times defendant No.1 during his life time and then LRs of
defendant No.1 to repay the amount and to admit the claim of the defendant
but to no effect. Hence, the present suit was filed.
3. Upon notice, respondent appeared and filed written statement
alleging that son of the petitioner used to accompany deceased Prem Kumar
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and he might have stolen some cheque leaves from his bag when he was
alive.
4. From the pleadings of the parties issues were framed on
21.02.2024.
5. After that the application, under Order 6 Rule 17 CPC for
amendment of the plaint was moved by petitioner alleging that due to
oversight and typographical error in the first line of para No.3 of the plaint,
month 'April 2020' has been wrongly typed instead of 'April 2019' and
further in line 4 of para No.3 of the plaint, the word 'post dated' was
inadvertently not added after the word 'a' and before the word 'cheque' and
likewise, in para No.11 of the plaint, the date '09.04.2020' has been wrongly
typed in place of 'April 2019'.
6. Reply to the said application was filed by respondents/
defendants on 02.07.2024. Said application was dismissed vide order dated
20.09.2024 passed by the trial Court. Aggrieved against the same, the
petitioner has knocked the doors of this Court by way of filing the present
revision petition.
7. Learned counsel for the petitioner has contended that the reason
given for rejection by the trial Court that the petitioner was having
opportunity to rectify his mistake earlier and the amendment if allowed may
frustrate the objection of limitation taken by the respondents. He has
contended that it was the mistake on the part of the counsel which resulted
into necessity of filing the present application and on account of mistake of
the counsel, the petitioner should not be made to suffer. He has also argued
that the amendment if allowed is not going to change the nature of the suit
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and is necessary to bring the facts in consonance with each other. He also
urged that it is well settled law that at the time of allowing an amendment
merits of the case are not be touched and as such the proposed amendment
will not frustrate the objection of limitation taken by the respondents. He
has submitted that the impugned order is wrong, illegal, unjust and against
equity and is liable to be set aside and has prayed that present revision
petition be allowed and application under Order 6 Rule 17 CPC filed by the
petitioner may also be allowed. In support of his contention, he has placed
reliance upon the judgment of Hon'ble Supreme Court in Varun Pahwa Vs.
Mrs. Renu Chaudhary, civil appeal No.2431 of 2019, decided on
01.03.2019 and Ragu Thilak D. John Vs. S. Rayappan, civil appeal No.787
of 2001, decided on 23.01.2001.
8. I have heard learned counsel for the petitioner and has gone
through the relevant record.
9. By way of the proposed amendment, the petitioner wants to
amend the year mentioned as 'April 2020' in paragraph 3 of the plaint with
'April 2019', and in the 3rd paragraph itself he wants to add the word 'post
dated' before the word 'cheque' and likewise, in para No.11 of the plaint
wants to mention date as 'April 2019' instead of '09.04.2020'.
10. Written statement was filed in this case on 29.09.2023.
Thereafter, despite the several adjournment no amendment was sought.
Issues were framed on 21.02.2024 and even thereafter, on two occasions of
adjournment, no amendment was sought. Trial Court has observed that as
per proviso appended to Rule 17 of Order 6, no application for amendment
shall be sought after the trial has commenced, unless the Court comes to the
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conclusion that in spite due diligence, the party could not raise the matter
before the commencement of trial. Trial Court has observed that in the
instant case, the plaintiff has failed to show due diligence on his part,
therefore, amendment is not permissible. It has also been observed that
nature of amendment sought is such that the same is not only going to
change material facts but also likely to frustrate the objection of limitation
taken by respondents in their written statement.
11. From the perusal of record, it emerges that even if the
proposed amendment as sought by the petitioner/ plaintiff is allowed even
then the facts of the plaint are contradictory. As per para No.5 of the plaint,
plaintiff disclosed defendant No.1 about the fate of cheque and defendant
No.1 requested the plaintiff not to take legal action and requested him to
give some days to arrange the amount. This is an admitted fact that
defendant No.1 Prem Kumar had died on 17.08.2019. As per the record and
pleadings, the cheque issued by defendant No.1 was dishonored and
received back unpaid along with memo dated 15.04.2020 with remarks
'Funds Insufficient' meaning thereby that the cheque allegedly issued by
deceased Prem Kumar was dishonored on 15.04.2020. So when Prem
Kumar died on 17.08.2019, then as per pleadings in para No.5 of the plaint,
plaintiff could not have disclosed to defendant No.1, who was already dead
by that time, about the fate of cheque and could not have requested a dead
person not to take legal action and grant him some days to arrange the
amount. Thus, the plaint filed by the petitioner appears to be contradictory.
By way of the proposed amendment, the petitioner wants to introduce
altogether new facts which are not in consonance with para No.5 of the
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plaint and qua para No.5 of the plaint no amendment has been sought.
12. The case law sited by learned counsel for the petitioner is also
of no help to the petitioner, being based on distinguishable facts.
13. Thus, there being no illegality or infirmity in the impugned
order, no interference therewith is called for while exercising the revisional
jurisdiction. The present revision petition being bereft of any merits stands
dismissed.
14. All pending applications, if any, also stand disposed of
accordingly.
(SUKHVINDER KAUR)
JUDGE
20.01.2025
komal
Whether speaking/ reasoned : Yes/ No
Whether Reportable : Yes/ No
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