IMPORTANT POINT
A Court, if of opinion that amendment sought is necessary for determining real controversy and applicant despite exercise of due diligence could not raise pleadings before trial commenced, can allow such prayer even after commencement of trial.

Ram Chand Gupta, J—CM No. 3733 CII of 2011

Application is allowed subject to all just exceptions.

CM No.3734 CII of 2011

Requests for placing on record Annexures P4 to P6. The same are taken on record subject to all just exceptions.

CM stands disposed of.

CR No.3627 of 20l0

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 6.5.2010, Annexure P3 passed by learned Civil Judge (Junior Division), Pathankot vide which application filed by petitioner under Order 6, Rule 17 of Code of Civil Procedure (hereinafter to be referred as the ‘CPC’) for amendment of plaint, was dismissed.

2. I have heard learned counsel for the parties and have gone through the whole record including the impugned order passed by learned trial Court.

3. Facts relevant for the decision of the present revision petition are that, petitioner/ plaintiff filed a suit for possession of 1/4 share of land in dispute on the basis of will dated 3.5.1996 allegedly executed by his deceased father in his favour and in favour of defendants, who are real brothers of plaintiff. He has also challenged sale deeds dated 6.4.2000 allegedly executed .by their father in favour of respondents/defendants on the basis of which mutations Nos.359, 360 and 361 were also sanctioned. He also challenged the said mutations as well. Sale deeds and mutations have been challenged on the ground that the same were result of fraud and no such sale deeds have been executed by his father during his life time. It is contended that father of petitioner/plaintiff and respondents/defendants died on 27.8.1999. Suit was contested by respondents/defendants. In the written statement, it was mentioned that correct date of sale deeds has not been mentioned by petitioner/plaintiff. Issues were framed. Evidence of both the parties were recorded and the case was fixed for arguments, when an application was moved by the petitioner-plaintiff for amendment of the plaint under Order VI, Rule 17 CPC which was contested by respondents/defendants. The application was dismissed by learned trial Court by observing as under:

“After hearing learned counsel for both the parties and after going through the documents available on file, I am of the considered opinion that in the present case the defendant Nos.1 and 2 filed written statement on 14.11.2003 and in that written statement the defendants took objections with regard to sale deed alleged by the applicant dated 6.4.2000 and he has categorically mentioned that no such sale deed on that date was ever executed rather the sale deed was executed on 10.5.1999 which was registered with Sub- Registrar on 13.5.1999 and the matter was also put up before the witnesses of the plaintiff at the time of their cross examination. Although the change of date of sale deed does not effect the actual position of the present suit but when the plaintiff remained kept mum for more than 6 years and he is seeking declaration with regard to that specific sale deed and further alleged that a valid will was executed by the same person who executed the sale deed namely Puran Chand and the plaintiff has mentioned the date in his pleadings and when this fact was within the knowledge of the plaintiff and why remained mum for such long time for about 6 years, whereas I am also supported with law laid down in as Revajeetu Builders and Developers v. Narayanasawamy & Sons & Ors. 2009(6) Law Herald (SC) 3663, wherein it is held that:

(B) Civil Procedure Code 1908—Order 6, Rule17—Amendment of plaint. Principles which ought to be taken into consideration while allowing or rejecting the application for amendment.

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money.

(4) Refusing ame