IMPORTANT POINT
When the petitioner was genuinely unable to obtain correct particulars for filing/ amending the plaint, trial has just begun, the proposed amendment will not change nature of the suit and the amendment will not prejudice the defendants, it should be allowed.

JUDGMENT :

Uday Umesh Lalit, J.

Leave granted.

2. Civil Suit No.195 of 1968 filed by respondent No.1 for declaration on the basis of reversionary rights was decreed ex-parte against the predecessor-in-interest of the present appellants. After having come to know about such ex parte decree dated 30.06.1969, present suit was filed by the appellants for setting aside said decree.

3. The appellants pleaded in the suit that the file in respect of Civil Suit No.195 of 1968 was not traceable in the record room. Issues were framed and thereafter two official witnesses were examined, at which stage the appellants preferred an application seeking amendment of the plaint. The amendment sought by the appellant was as under:

“3-A. That the perusal of the copy of the order/judgment dated 30.06.1969 and decree shows that the defendant No.1 filed that suit in the year 1968 deliberately without giving all the particulars of the land at that point of time in the plaint in spite of the fact that consolidation of holding did take place in the year 1961-1962 and gave the old numbers before the consolidation with ulterior motive. Since old numbers were not in existence at the time of filing of the suit, an ex parte decree has been procured by suspension of the material facts.

a. Land measuring 48 kanals 7 marlas entered at rect. No.39, Killa No.19/2, 12, 19/1, 18/2, 10, 23, rect. No.38, killa No.5, 6/1, rect. No.60, killa No.2/1min.

b. Land measuring 36 kanals 16 marlas entered at rect. No.38, kill No.16/2, 25/1, 14/2, 6/3, 24, 15/1, rect. No. killas No.14, 15/1.

c. Land measuring 68 kanals entered at rect. No.213, killas No.16/2, 14, 15, 17/1, 16/2, rect. No.114, killa No.11, 12, 10, 9, rect. No.212, killa No.21, rect. No.92, killa No.5. It may also be mentioned here that the suit filed by Buta Singh, defendant No.1 alone as shown in the copy of the order/judgment and decree of civil suit No.195 of 1968 without impleading all the legal heirs of vendor Mehnga Singh and when the 2nd suit was filed after the death of Mehnga Singh which was pending before the court of Sh. Rajesh Garg, no detail of the vendees and their successors in interest has been given in the plaint. At the most if the decree is not set aside a fact disputed and denied then too may the defendant No.1 is only at the best can claim relief to the extent of 1/9th share of the total property and other defendant No.17 to 24 are not legally entitled to any relief in view of the ex parte decree passed in civil suit No.195 of 1968.

3-B That the prayer clause also requires to be amended. So before the words “costs of the suit and after the words” during the pendency of the suit following prayer may also be inserted.

4. The aforesaid application came to be dismissed by the trial court observing that the appellants had failed to exercise due diligence and that the facts in question could have been raised before framing of the issues. The rejection of the application for amendment was challenged by way of Civil Revision No.5373 of 2014 in the High Court. It was submitted on behalf of the appellants that there was no change in the nature of the suit except that specific khasra numbers were sought to be specified by way of amendment. It was further submitted that the amendment would not prejudice the case of the defendants.

5. The High Court, however, dismissed said revision petition by its judgment and order dated 25.07.2017, which is presently under appeal. It was observed by the High Court:

“No doubt, the amendment would not change the nature of the suit, however, all amendments which do not change the suit cannot be allowed particularly after the commencement of the trial. It has been found by the Court that necessary pleadings are already in existence in the original plaint.”

The High Court was of the view that Proviso to Order 6 Rule 17 of the Code of Civil Procedure, as duly amended, laid down that once the trial had commenced, no amendment could be allowed unless the court were to come to the conclus