SURJEET SINGH Vs. SUCHA SINGH

JUDGEMENT

(1.) This revision is directed against the order of Sub Judge III Class, Rupnagar, dated 28th of September, 1978, whereby the application of the plaintiff-petitioner for amendment of the plaint under Order 6 Rule 17, C.P.C. was disallowed.

(2.) The brief facts bearing on the controversy in hand are that a suit for declaration was filed by the present petitioner to the effect that he along with respondent Nos. 3 and 4, who are his brothers, were the owners in possession of the land and the houses in dispute. Sometime before the filing of the suit their father Dasondhi had died. Thereafter, the mutation of interitance was sanctioned in favour of the petitioner, his brothers-respondent Nos. 3 and 4 and also their mother respondent No. 2. The mother after the mutation transferred her share in the suit property in favour of Sucha Singh respondent No. 1 by gift. Subsequently, the donee approached the Assistant Collector for partition of the property to the extent of his share. The order regarding partition was passed by the Assistant Collector on 22nd of February, 1976. As the petitioner and his brothers felt aggrieved by the order of the Assistant Collector regarding partition, the present suit for declaration was filed. When the evidence of the parties had been closed and the suit had been fixed for arguments, application for amendment under Order 6 Rule 17, C.P.C. was filed by the petitioner on 26th of September, 1978, seeking to amend the plaint. By the proposed amendments, averments are sought to be made by the plaintiff that the property in dispute is ancestral, that the parties are governed by custom and that according to the special custom of District Ropar respondent No. 2 as widow of the last owner Dasondhi, was not entitled to inheritance in any manner along with her sons. This application was dismissed by the trial Court on the ground that the case had been lingering on for the last more than two years and the evidence of the parties had also been closed.

(3.) The learned counsel for the petitioner has contended that though the application for amendment was made at a late stage, but according to the law settled by the Supreme Court, mere delay howsoever long or even negligence of a party in making a prayer for amendment of the pleading cannot be a justification for rejecting the application for amendment. It was further contended that the requisite averments which are sought to be incorporated in the plaint by way of amendment could not be made at the time of filing the suit on account of the mistake of the counsel who drafted the plaint and for this lapse, the petitioner who is illiterate should not be penalised. Reliance in this regard has been placed on Achhuta Mallick V. Magu Mallick, 1974 AIR(Ori) 183. A Supreme Court decision reported in M/s. Ganesh Trading Co. V. Moji Ram, 1978 80 PunLR 458, was also pressed into service in which it has been held that pleading new cause of action or a new case by way of amendment should not be allowed only if by lapse of time fresh suit will be barred and a valuable right accrues to the other side. According to the learned counsel, application for amendment had been filed on 26th September, 1978, and the cause of action had accrued to the petitioner from the order of the Assistant Collector ordering the partition of the suit property which was passed on 22nd of February, 1976. Thus at the time of the application for amendment, three years had not elapsed and a fresh suit will not be barred.