Amendment of Plaint – Due diligence – Even if petitioner was not diligent but to determine the real question in controversy if amendment is necessary it should be allowed.

Mr. B.S. Walia, J. (Oral) – Revision petition has been filed challenging order dated 07.07.2015 (Annexure P5) passed by the learned Civil Judge (Junior Division), Sonepat dismissing application dated 05.09.2013 (Annexure P3) for amendment of the plaint.

2. Brief facts of the case are that the petitioner and proforma respondent Nos.2 to 10 had filed a civil suit against the respondent No.1- defendant for declaration with consequential relief of permanent injunction on the averments that Late Kanihya i.e. grandfather of proforma respondent No.2 had three sons namely Fateh Singh, Shiv Raj and Ramphal (i.e. the petitioners herein) out of whom Shiv Raj died issueless leaving behind his widow Smt. Ramkali i.e. (respondent No.1-defendant). It was further averred in the plaint that the petitioner and proforma respondent Nos. 2 to 10 were owners in possession of agricultural land falling to their respective shares as comprised in Khewat No.357/360, Khatoni No.659 to 660 Rect. and Killa Nos. 45//23/2 (4-0), 18/1 (2-4), 23/1 (4-0) total measuring 10 kanals 04 marlas and in Khewat No.359/352 Khata No.662, Rect. and Killa Nos.42//13 (6-19), 14/1/1 (2-0), 14/1/2 (2-0) total measuring 10 kanals 19 marlas as mentioned in the revenue record and further that the father of proforma respondent Nos.2, 4, 5, and 6 and grand-father of proforma respondent Nos.7 to 10 and father-in-law of proforma respondent No.3 and plaintiff No.10 Smt. Kitabo, widow of Fateh Singh and plaintiff No.11 i.e. petitioner herein and Late Sh. Shiv Raj are/were owners in possession of the agricultural land as mentioned above in equal share i.e. 1/3rd share each situated in the revenue estate of village Malikpur, Tehsil and District Sonepat as per Jamabandi for the year 2004-05. It was also mentioned in the plaint that Late Sh. Shiv Raj who died issueless, used to reside with his real nephew i.e. proforma respondent No.2 and the petitioner (i.e. plaintiff No.11) and they lived jointly and looked after said Late Sh. Shiv Raj till his death and due to love and affection Late Sh. Shiv Raj executed a Will in favour of petitioner (plaintiff No.11) and proforma respondent Nos.2 to 10 i.e. (the plaintiff Nos.1 to 10) in the civil suit as well as respondent No.1- defendant Smt. Ramkali, his widow, in equal share on 14.02.2004 and died on 22.06.2009. It is further mentioned in the plaint that respondent No.1- defendant Smt. Ramkali in collusion with some mischievous elements as well as the revenue officials got sanctioned a mutation bearing No.3308 dated 22.06.2009 in her favour of the entire share of Late Sh. Shiv Raj and the same was wrong, illegal, null and void and liable to be set aside as respondent No.1-defendant was only entitled to the extent of 1/12th share of the property left by Late Sh. Shiv Raj. The genuine request of the petitioner and proforma respondent Nos.2 to 10 to respondent No.1-defendant Smt. Ramkali not to alienate the suit property more than her share on the basis of wrong and illegal mutation sanctioned in her favour having been refused, the petitioner and proforma respondent Nos.2 to 10 filed a civil suit with the prayer that decree be passed for declaration that the plaintiffs were owners in possession of the land as detailed in para No.1 of the plaint qua their respective shares i.e. 1/12th share each over the property of late Sh. Shiv Raj and that mutation bearing No.3308 dated 22.06.2009 was wrong, illegal, null and void and liable to be set aside and not binding upon the rights of the petitioner and proforma respondent Nos.2 to 10.

3. The civil suit was filed on 04.03.2010. On 05.09.2013, the case was fixed for plaintiffs’ evidence on which date an application was filed under Order 6 Rule 17 CPC for permission to amend the plaint on the ground that inadvertently there had been omission to mention details of land in paragraph No.1 of the plaint. The detail of the amendment sought to be carried out is as under:-

“1/2 share of Shiv Raj son of Kan