CR No. 139 of 2012

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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CR No. 139 of 2012

Date of decision : MAY 11, 2012

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Surinder Singh and others

............Petitioners

Versus

Jagat Ram and others

...........Respondents

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CORAM:

HON'BLE MR. JUSTICE M.M.S BEDI

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Present:

Mr. Vikas Bahl, Advocate for the petitioners.

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M.M.S BEDI, J (ORAL)

The petitioners are the legal heirs of plaintiff-Hoshiar

Singh. He had filed a suit for possession regarding 12 kanals 30

marlas of land against the defendant-respondents. Vide impugned

orders dated 7.8.1978 and vide order dated 3.12.2011, the

application filed by the plaintiff for amendment of para 9 of the plaint

has been dismissed on the ground that the amendment has been

sought after commencement of the trial. Hoshiar Singh, plaintiff had

mentioned in para 9 of his plaint, in accordance with the provisions of

order 7 rule 1 Clause J incorporated by amendment of Punjab

Haryana and Chandigarh mentioned in para 9 that no civil suit was

pending between the parties. The plaintiff by way of amendment

sought to incorporate in para 9, the plea as follows:

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“ that a civil suit titled Hoshiar Singh vs. Karam Chand etc. was

pending. However, Hoshiar Singh could not pursue it due to his

illness and hence the same was dismissed in default on 7.8.1978 by

the Court of Sh. S.S Gupta, learned SJIC, Dasuya”. The abovesaid

amendment has been disallowed. No doubt no amendment should

be committed after commencement of the trial but the circumstances

of the present case indicate that in the written statement filed by the

respondents, a reference has been made to the order dated 7.8.1978

stating that the suit filed by the plaintiff had been dismissed. It

appears that the plaintiff did not clarify the said fact that the earlier

suit had been dismissed for non prosecution on 7.8.1978. Counsel

for the petitioner has submitted that during the course of trial, the

copy of the judgment dated 7.8.1978 has already found its fate in the

evidence and has been proved on the record. It has been argued by

the counsel for the plaintiff-petitioner that the only objective of the

amendment is to avoid any adverse order on the basis of violation of

the statutory requirement of order 7 Rule 1 Sub Rule J as

incorporated by amendment in Punjab, Haryana and Chandigarh. It

has further been argued that the plaintiff-appellant merely wants to

amend the plaint which is clarificatory in nature and will not take the

defendant-respondent by surprise as the order dated 7.8.1978 was

already known to the defendant-respondents as per written

statement.

After hearing learned counsel for the plaintiff-petitioner, I

am of the considered opinion that the only objective of the

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amendment is to avoid an adverse order on technicality and the

amendment appears to be of clarificatory in nature. The amendment

deserves to be allowed. The impugned order dated 3.12.2011 is

hereby set aside. The amendment is allowed subject to payment of

costs of Rs.10,000/-. The plaintiff-petitioner will place on record, the

amended plaint with no right to lead any oral evidence as undertaken

by the counsel for the plaintiff-petitioner. However, the plaintiff-

petitioners will be entitled to produce certified copy of the order dated

7.8.1978 with liberty to the defendant-respondent to place on record

any rebuttal document with a right to file a written statement to the

amended plaint. Parties will appear before the trial Court on

14.5.2012. Costs may be paid before the final hearing.

May 11, 2012

( M.M.S BEDI )

ritu

JUDGE