Jaswant Singh, J.

1. Petitioner-plaintiff, by filing the present revision petition under Article 227 of the Constitution of India, has prayed for setting aside orders dated 17.9.2008 passed by the learned Civil Judge (Junior Division), Hisar whereby his application under Order 6 Rule 17 CPC for amendment of the plaint has been dismissed.

2. The facts are that the petitioner-plaintiff filed a suit on 6.11.2006 for mandatory injunction seeking direction to the respondents-defendants to fill up the earth in the trench, which was dug up by them near/adjacent to the northern wall of the house of the plaintiff and further for permanent injunction restraining them not to dig any khai or to cause damage to the foundation of the house of the plaintiff, in any manner. Along with the suit, an injunction application under Order 39 Rules 1 & 2 CPC was also filed. Defendants-respondents appeared and contested the suit. The interim injunction application of the petitioner-plaintiff was dismissed and appeal filed against the same was allowed by the learned Appellate Court. In pursuance of the directions of the learned Appellate Court, it is stated that the respondents- defendants have filled up the trench allegedly dug by them.

3. It appears that when the case was fixed for replication and framing of issues, it was discovered that the trench/khai was dug by the defendants on the side adjacent to the eastern wall of the house of the petitioner-plaintiff instead of the northern wall of the house and due to a typographical error and the word "northern" wall was stated. Thus the prayer was made to substitute the word "eastern" in place of "northern". A further prayer was made for inserting the relief of amount on account of damages suffered due to digging up of such trench/khai. Reply to the application by the defendants-respondents was filed. It was pleaded that the said mistake could not be a typing error. It was also stated that the additional plea is vague, uncertain, indefinite and cannot be allowed, at this stage as no reason has been given as to why these were not taken at the time of institution of the suit.

4. Learned trial Court observed that the petitioner-plaintiff is estopped from raising the plea that actually the trench in question is towards the eastern side of the house in stead of already pleaded though, inadvertently, that the same existed towards the northern side of the house and the petitioner- plaintiff was not entitled to substitute the word "northern with "eastern" side of the wall on the ground that even the Local Commissioner, in its report dated 9.12.2006, had reported that the trench/khai was dug by the defendants in the northern side of the house of the plaintiff, as also the same had been filled up by the respondents-defendants in compliance with the orders passed by the learned first Appellate Court. Learned trial Court further rejected the plea of damages sought to be inserted in the relief clause by relying that in view of the material placed on record, the possibility of the cracks in the building of the plaintiff due to age and cheap construction, could not be ruled out. Thus, the application was dismissed vide impugned orders dated 17.9.2008.

5. I have heard learned counsel for the parties and perused the case file.

6. In my opinion, the present revision petition deserves to be allowed. It is not disputed that the suit for permanent injunction was filed on 2.11.2006 and the present application seeking amendment was filed on 12.6.2007 when the case was fixed for 26.7.2007 for replication and framing of issues. It is also not in dispute that in the site plan annexed with the plaint, the said trench/khai is shown to be on the eastern side of the house of the petitioner-plaintiff. It is also not disputed that in the written statement it had been stated that the site plan annexed with the plaint is not in consonance with the pleadings.

7. A perusal of the site plan shows that the house of the respondents- d