Amendment of Plaint--Due Diligence--Defining the property in terms of its number would not change the nature of the suit, nor the suit property would be changed by any necessary implication--Amendment allowed

JUDGMENT

Mr. Raj Mohan Singh, J.:- Petitioners have challenged the order dated 20.04.2017 passed by Civil Judge (Junior Division), Sunam vide which the application under Order 6 Rule 17 CPC for amendment of plaint was rejected.

2. Plaintiffs filed a suit for declaration to the effect that the plaintiffs are owner in possession of half share in land bearing killa No.167//17(7-8) situated at village Janal and defendants Nos.2 to 5 have no concern with the aforesaid land and mutation Nos.7670 and 7671 were claimed to be illegal, null and void. Permanent injunction was also sought, restraining the defendants from alienating the suit property.

3. Following recital was made in para Nos.1 and 6 of the plaint:-

“1. That earlier Sumar Singh @ Shamsher Singh @ Aala Singh s/o Mangal Singh was owner in possession of land measuring 7 kanal 8 marla situated at village Janal as mentioned in heading part A of the suit.

6. That apart from suit land, 195 kanal 7 marla land situated at village Janal was also there in the name of Sumer Singh and mutation of inheritance of the same had been sanctioned in favour of Balwinder Singh and Joginder Singh, on the basis of registered Will. Copy of mutation No.5680 village Janal, land measuring 195 kanal 7 marla is attached with the suit.”

4. Now in the application for amendment of plaint, the plaintiff sought to amend the pleadings on the ground that the deceased Shamsher Singh was having land at two places in village Janal and Shamsher Singh had executed a Will in favour of his both sons. Mutation of some property was sanctioned as per said Will, but mutation of some property was sanctioned on the basis of natural succession. The suit was filed in that context, but the plaintiff inadvertently could not mention the number of other property in respect of which mutation was sanctioned on the basis of natural succession. The proposed amendment was to the said effect i.e they want to mention numbers of property of the mutation which was sanctioned on the basis of natural succession.

5. Defendant No.1 was proceeded against ex parte before the trial Court. Defendants No.2 to 5 denied the execution of Will in favour of the plaintiffs. Defendants No.2 to 5 stated that earlier the defendants have filed a suit i.e. Suit No.197 of 25.07.2011 titled Bajlit Kaur Vs. Gurmeet Kaur in respect of 95 kanal 75 marla of land, in which compromise was effected and the suit was dismissed. Therefore, mutation sanctioned on the basis of Will was illegal and mutation sanctioned on the basis of natural succession was correct.

6. Trial Court dismissed the application on the ground that the proposed amendment was very much in the knowledge of the plaintiffs at the time of filing of the suit and they did not describe the numbers of the suit property. By addition of number, a new cause of action will arose and the nature of the suit land will be changed. The suit was filed in the year 2013 and after five years, the nature of the suit will be changed.

7. I have considered the submissions made by learned counsel for the parties.

8. During arguments, it has transpired that the plaintiffs have already concluded their evidence. At one point of time, defence of the defendants was struck off and the application was filed for setting aside the said order.

9. Learned counsel for the petitioners submitted that the respondents took more than two years to file reply to the application under Order 6 Rule 17 CPC. The case was adjourned for 17 occasions for filing reply. Learned counsel contended that no new case would be made out by incorporation of proposed amendment as the land under the mutation sanctioned on the basis of natural succession would be given due numbers. The amendment is only clarificatory in nature for which no further evidence is required to be led by the parties except nomenclature of the land viz-a-viz the number. Such an incorporation would not make the cause of action to be time barred by any stretch of imagination. Defendants