Amendment of Plaint--Change in nature of suit--Nature of the suit can be changed per se--No such bar exists to seek such an amendment, if it goes to the root of the dispute between the parties
Amendment of Plaint--Change in Relief--Plaintiff can seek amendment of relief clause in an application under O.6 R.17 CPC

AMOL RATTAN SINGH, J.

By this petition, the petitioners challenge the order dated 22.05.2018 (copy Annexure P-6) passed by the learned Civil Judge (Senior Division), Nabha, allowing the application moved under Order 6 Rule 17 CPC by the respondent-plaintiff, seeking amendment of his suit. In the application, it was alleged that a counsel had been engaged by the plaintiff to file a suit seeking specific performance of an agreement dated 25.02.2011, but instead of doing that the Advocate “inadvertently filed a suit seeking permanent injunction against the petitioners-defendants” and the plaintiff not being conversant with either English or 'legal language', signed the plaint and power of attorney in favour of the said counsel (Smt. Anjana Guliany, Advocate), in good faith.

Subsequently, another counsel (Shri Arun Chopra) is stated to have appeared in the suit filed on behalf of the plaintiff on 30.03.2016 (the civil suit having been instituted on 24.11.2015) and upon examining the case file, he informed the plaintiff that the suit was not one seeking specific performance of the agreement and consequently, as per the plaintiff, it had become necessary to amend the plaint by “including the relief for specific performance of the agreement dated 25.02.2011 extended on 25.10.2011 to 31.12.2014, with the mutation (sic mutual) consent at (sic of) the party”.

On that very day, the defendants had also filed an application under Order 7 Rule 11 CPC seeking rejection of the plaint.

It was further contended by the applicant-plaintiff (present respondent) that the suit being at its initial stage, no prejudice would be caused to the defendant if the proposed amendment was allowed.

2. Upon notice of the application for amendment, the petitioners-defendants appeared before the learned Civil Judge and filed a written reply to the effect that a “false suit” had been got filed through the previous Advocate, seeking permanent injunction, and with the plaintiff having sworn an affidavit in which he admitted the contents of the plaint to be correct, duly read over and explained to him in Punjabi, it was actually not the fault of the previous counsel, as she had filed the suit as per the instructions of the plaintiff.

Consequently, dismissal of the application (under Order 6 Rule 17 CPC) was sought by the present petitioners-defendants.

3. Upon hearing the parties, the learned Civil Judge held that the amendment of pleadings can be allowed at any stage of the proceedings, in terms of Order 6 Rule 17, if the amendment was found to be necessary for the purpose of determining the real question involved in the dispute between the parties, even though the proviso to the said rule stipulated that no such amendment would be allowed after the trial had commenced, unless the Court came to a conclusion that in spite of due diligence, the party (seeking the amendment) could not have raised the matter before the commencement of the trial.

Holding that the proviso under Order 6 Rule 17 did not apply to the present case as the trial had not commenced, with even the defendants not having filed their written statement, it therefore being at the initial stage; and further rejecting the contention that the application was not maintainable because the plaintiff swore an affidavit admitting the contents of the plaint to be correct, duly explained to him in Punjabi, that Court went on to hold that a party to a lis cannot be made to suffer on account of the mistake of his counsel and that the amendment “appears to be essential”.

Consequently, the application of the respondent herein, seeking amendment of his plaint, was allowed vide the impugned order, leading to the filing of the present revision petition.

4. Before this Court, Mr. Salar, learned counsel appearing for the petitioners, submitted that no amendment can be made in a civil suit changing the nature of the suit, as such amendment would be barred in terms of Order 2 Rule 2 CPC.

He further submitted that in the app