GURJEET SINGH AND ORS. Vs. KAMALJEET SINGH

JUDGEMENT

(1.) THE Plaintiffs have preferred this revision petition against the order dated March 1, 2011 allowing the application for amendment under Order 6 Rule 17 Code of Civil Procedure filed by the Defendant -Respondent permitting him to amend the written statement and to add preliminary objections 6 and 7 in the written statement to the effect that the site plans of the Plaintiffs are not correct as per the sale deeds dated February 11, 1966 and July 27, 1967 and that the suit is bad for partial partition as the Plaintiffs have not included other properties owned by Darshan Singh.

(2.) I have heard counsel for the Petitioners and with the assistance of the counsel gone through the plaint, the original written statement, the original issues framed and the impugned order. No doubt in the present case the suit was filed on March 30, 2006 and the written statements was filed on April 10, 2006. The issues were framed on July 20, 2006 and entire evidence of both the parties have been closed in December 2006, while the Defendant evidence was being recorded. An application for amendment was filed on January 19, 2011 seeking aforesaid amendment in the written statement. A perusal of the pleadings indicates that the suit property was allegedly owned by Puran Singh. He had, by virtue of two sale deeds, transferred the same to his son Darshan Singh. The Plaintiff - Petitioners and Defendant -Respondent are the natural heirs of Darshan Singh. After the death of Darshan Singh, the Plaintiff -Petitioners are seeking partition on the basis of natural inheritance claiming themselves to be owners to the extent of 4/5th share. It has been brought to my notice that after the amendment, two additional issues have been framed as issue Nos. 5A and 5B to the effect (i) site plan annexure 1 and 2 are not correct as per sale deeds dated 11.2.66 and 27.7.1967; and whether the suit is bad for partial partition as the Plaintiff has not included the other properties owned by Darshan Singh. The Defendant has now to lead evidence. No doubt, the proceedings will be delayed on account of the amendment having been allowed and the additional issues framed.

(3.) COUNSEL for the Petitioners has placed reliance on K.B. Sharma v. Sh. Keerti Karan Dharni, 2010 (2) RCR 19 and Ajit Singh v. Jaswinder Kaur, 2009 (1) CCC 354 in support of his contention that application for amendment cannot be allowed after the trial has commenced unless the Court comes to the conclusion that inspite of due diligence the party could not have raised the matter before commencement of the trial. He has also placed reliance upon the judgment of Supreme Court in Vidya Bai and Ors. v. Padma Latha and Anr., 2009 (1) CCC 798 (SC) to contend that the amendment of the pleadings after commencement of the trial cannot be allowed casually. He has also placed reliance on Ajender Parshadji N. Pande and Anr. v. Swami Kesav Parkash Dass Ji and Ors., 2007 (1) RCR 481 (SC) laying down that for the purpose of Order 6 Rule 17 CPC, trial will be deemed to commence when issues are settled and the case is set down for recording of evidence and that a party seeking amendment has to prove that inspite of due diligence, he could not have raised the matter before the commencement of trial.