Naresh Kumar and Anr. Vs Devinder Singh and Anr.

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR-455-2025 (O&M) Reserved on: 19.05.2025 Date of pronouncement: 01.07.2025

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Naresh Kumar & Another

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...Petitioner(s)

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Vs.

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Devinder Singh & Another CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Argued by:Mr. Rakesh Chopra, Advo c ate with Mr. Jashan Chopra, Advo c ate for the petitioners. Mr. Nikhil Chopra, Advoc a te for the respondents. *** NIDHI GUPTA, J.

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...Respondent(s)

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Present revision petition under Article 227 of the Constitution of India has been filed by the plaintiffs for setting aside the impugned o rder dated 08.01.2025 (Annexure P6) passed by learned Additional Civil Judge (Senior Division), Fa t ehgarh Sahib vide which the application f iled by the petitioners/plaintif f s under Order 6 Rule 17 CPC read with S ection 151 CPC for amendm e nt of the plaint, has been dismissed.

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Mr. Nikhil Chopra, Adv o cate puts in appearance on behalf of t h e respondent/defendants and files Vakalatnama, which is taken on rec o rd.

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Brief facts of the case ar e that the petitioners filed Civil Suit dated 2 5.09.2019 (Annexure P1) seeking specific performance of

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Agreement t o Sell dated 04.12.2015 for sui t land measuring 25 kanals. It was averre d that the suit land was sold by the respondents to the petitioners f o r total sale consideration of R s .77,81,250/- all of which was paid by the p etitioners to the respondents. D espite that, possession of the suit land st a yed with the respondents. Ev e n no target date was set for execution of the sale deed. Alternate prayer in the suit was for recovery of sale conside r ation along with interest; and other allied reliefs. 4. The suit was resisted b y the respondents by filing written stat e ment dated 16.12.2020 (Anne x ure P2); to which replication dated 21.09.2021 (Annexure P3) was filed b y the petitioners. 5. Subsequently, the petiti o ners filed present application

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dated 29.8.2024 (Annexure P4) under Order 6 Rule 17 CPC for amendment of the plaint to the following ef f ect: –

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“2. That while filling the suit, t h e plaintiffs Naresh Kumar and Ved Prakash could not inform their counsel about one fact, which took place in the house of defendant no. 1 Devinder Singh. In fact, on 03-03-2019 t he father of the plaintiff Mr Sunder Lal S/o Uttam Chan d visited the house of the defendant no. 1 Devinder Si n gh along with his son Ved Prakash, his grandsons Rajan G akhar and Rahul kumar, Wajir Singh (deceased) S/ o Ajit Si n gh for amicable settlement before filling the suit. The mat t er of execution of registration of sale deed was discussed the r e, where the defendant no. 1 Devinder Singh admitted that he will execute and register the sale deed of 3 Acre land in favour of plaintiffs. This discussion was recorded in the mobile of the son of the plaintiff no. 1 Rajan Gakhar. The plaintiffs want to bring on record said visit

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and outcome of the meeting d ated 03-03-2019, which took place between above said persons. So, the plaintiffs want to add another paragraph in the p laint as para no. 12-A. On 0303-2019, the father of the pl a intiff Sunder Lal S/o Uttam Chand visited the house of t h e defendant Devinder Singh along with his son Ved Prakas h , his grandsons Rajan Gakhar and Rahul kumar, Wazir Sin g h(deceased) S/o Ajit Singh discussed the matter at length f or amicable settlement before f illing the suit. In said meeting , the defendant no.1 Devinder Singh admitted that he will exe c ute and register the sale deed of 3 Acre land in favour of plaintiffs soon and he also admitted that the plaintiff Nar e sh Kumar were never at fault rather he helped him whene v er he needed. Whole of the instance was recorded in the m o bile of the son of the plaintiff no. 1 Rajan Gakhar as three vid e o clips.”

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This application was re s isted by the respondents by filing reply d ated 10.10.2024 (Annexure P 5 ). Vide the impugned order dated 08.01 . 2025 (Annexure P6), application of the petitioners has been dismissed.

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It is inter alia submitte d by learned counsel for the petitioners t h at the impugned order is unsu s tainable for not assigning any reasons for rejecting the prayer of the petitioners for amendment of plaint. Ld. C ounsel contends that in pass i ng the impugned order, the learned trial court lost sight of the fact that a lthough the respondent in his written stat e ment has denied specific perf o rmance of the Agreement in question, h o wever, in the proposed evid e nce/video recordings in the

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possession o f the petitioners, the respo n dent has admitted the said Agreement to Sell dated 04.12.2015. In the written statement, the respondents have also not denied that full a m ount of about Rs.78 lakh has been receiv e d by them. Since entire sale consideration was paid, the sale was to be executed by the responde n ts/defendants in favour of petitioners/ p laintiffs on demand made b y them. On 13.08.2019, the plaintiffs re q uested the defendants for exe c ution of Sale Deed, but they refused. He n ce suit for specific performanc e was filed on 25.09.2019. Ld. Counsel co n tends that as such, it is i m perative to bring the said conversatio n between the parties on record for the proper adjudication of the matter.

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Ld. Counsel argues that it is only to substantiate the very facts pl e aded in the plaint, that the pe t itioners had filed the present application. I t is candidly admitted that the s aid facts did not find mention in the plaint due to ‘inadvertence’ on part o f the plaintiffs. However, it is argued that no new relief is sought by th e petitioners, and there is no mala fide in t ent behind the inadvertent o m ission. Even no prejudice will be caused t o the respondents as, when application for amendment of plaint was f i led, evidence of the plaintiffs was going on. The plaintiffs’ evidence ha s not been closed on account of non-cross-examination of PWs by def e ndants. Various times PWs we r e present but defendants did not cross-ex a mine them. The learned trial c ourt was constrained to pass orders eith e r granting last opportunity t o the defendants for cross-

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examination of PWs or imposing costs upon defendants. Thus, Application of the petit i oners is not barred by limitation as the petitioners’ crossexamination is yet to happen. Even the c ertificate as amended under Section 65- B of the Indian Evidence Act ha s been given by the petitioner along with h is application. It is submitted t hat on the other hand if the present peti t ion is not allowed, grave preju d ice and loss will be caused to the petition e rs.

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It is lastly contended th a t Proviso to Order 6 Rule 17 CPC does n o t bar the amendment if it is n ecessary for determining the actual and r e al controversy and nature of c ontroversy is not changed. In support of his contentions, learned counsel relies upon judgments of this Court in Sumeer Jassal Vs. Smt. Pushpa Rani & Others Law Finder Doc ID # 384840; Dalip Singh & Others Vs. Rattan Lal & Others Law Finder Doc ID # 2531572; M/s Vishesh Kumar Contractors & Others Vs. Surmukh Singh & Others Law Finder Doc ID # 2649807, in all of which it is broadly held that a m endment is to be permitted e ven after commencement of trial, if the s ame is necessary to avoid multiplicity of litigation and does not cause pr e judice to the defendant.

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Learned counsel furthe r relies upon judgment of th e Hon’ble Sup r eme Court in “Abdul Rehman & Another Vs. Mohd. Ruldu & Others” Law Finder Doc ID # 393861, wherein it is held that: -

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“10. Next, we have to see whe t her the proposed amendment s would alter the claim/cause of action of the plaintiffs. In vie w of the same, we verified the averments in the un-amende d

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plaint. As rightly pointed out by Ms. Manmeet Arora, learne d counsel for the appellants that the entire factual matrix for th e relief sought for under the pro p osed amendment had alread y been set out in the un-amend e d plaint. We are satisfied tha t the challenge to the voidness o f those sale deeds was implicit i n the factual matrix set out i n the un-amended plaint and, therefore, the relief of cancellation of sale deeds as sought b y amendment does not change t h e nature of the suit as alleged. It is settled law that if necessar y factual basis for amendment i s already contained in the plain t , the relief sought on the sai d basis would not change the n a ture of the suit. In view of th e same, the contrary view expre s sed by the trial Court and Hig h Court cannot be sustained. It i s not in dispute that the relie f sought by way of amendment by the appellants could also b e claimed by them by way of a s e parate suit on the date of filin g of the application. Considering the date of the sale deeds an d the date on which the applicat i on was filed for amendment o f the plaint, we are satisfied t h at the reliefs claimed are no t barred in law and no prejudi c e should have been caused t o respondent Nos. 1-3 (defen d ant Nos. 1-3 therein) if th e amendments were allowed an d would in fact avoid multiplicit y of litigation.”

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Ld. Counsel for the petiti o ners accordingly prays that in view of law a nd facts, the amendment may please be allowed as same is related to t h e controversy involved in the s uit and hence is necessary to be determin e d for all times to come. More o ver, there is neither change in cause of act i on nor in nature of suit. Evide n ce of plaintiff is going on and plaintiff is y e t to be cross-examined. No pre j udice would be caused to the

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defendants a s he will get an opportunity t o file written statement and cross-exami n e the witnesses of plaintiff ( a s only formal PW Yadwinder Singh has been cross-examined). The merits of the amendment are not to be seen/tou c hed at the time of deciding the amendment. The petitioner could have m entioned about the video rec o rding in his evidence if there was foundation of said video recording in t he pleading. Due to this very fact amend m ent is being sought and no delay is going to occur. The amendment is absolutely related to agree m ent to sell and suit property and is betw e en the same parties. The pe t itionerhas already placed on record certi f icate under Section 65-B of E vidence Act in trial Court in support of t h e said video recording/pen dri v e, which is also on the record. In order to s ettle the controversy technical i ties should not be allowed to come in wa y . It is accordingly prayed that t h e present revision petition be allowed and the impugned order be set asid e . 12. Per contra, learned c ounsel for the respondent s vehemently opposes the prayer made on behalf of the petitioners an d submits tha t it is the own pleading of the p etitioners that the said allege d video recor d ings were not produced due to “stress”. A bare reading o f application ( A nnexure P4) reveals that admi t tedly the said evidence was no t produced d u e to ‘oversight’. Ld. counsel argues that as per Order 6 Rule 1 7 CPC, the sa m e constitutes no ground to per m it amendment of the plaint. I t is stated tha t duty is cast on the plaintiff to e xercise due diligence. However ,

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there is no plea regarding due diligence in t h e said application. As such, th e impugned o r der suffers from no error. 13. It is further submitte d that the suit was filed i n September 2 019; whereas the present ap p lication has been filed 5 year s after comm e ncement of trial. It is point e d out that as noticed in th e impugned o r der, even at the time of filin g his affidavit of evidence, th e petitioner h a s made no reference whatsoev e r to this alleged recording. Th e respondent in his reply to the applica t ion (Annexure P5), has als o mentioned that the petitioner has already availed more than 30 dates fo r leading evid e nce including number of last opportunities. It is contended that the pre s ent application has been filed o nly with the express purpose o f delaying the proceedings.

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Ld. Counsel further c o ntends that by way of th e proposed a m endment, the petitioners are s e eking to misrepresent the fact s before the l e arned trial Court which will ch a nge the nature of the suit. It i s submitted t h at the petitioners are now m a king a new claim beyond th e prayer of sp e cific performance. As such, a r gument of the petitioners tha t the said evi d ence is necessary for the prop e r adjudication of the matter, i s liable to be rejected. It is lastly pointed ou t that the respondent is a poo r farmer, whereas the petitioners are com m ission agents. It is accordingl y prayed that the present application be dismissed. In support, ld. counse l relies upon j udgment of this Court in “Shabbu Vs. Nishan & Others” Law Finder Doc ID # 463043; judgment of C a lcutta High Court in “Gautam

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Mukherjee & Others Vs. Abani Mohan Goswami” Law finder Doc ID # 2148494; ju d gment of Allahabad High Court in “Shri Firoz Uddin & 4 Others Vs. Shri Anwar Uddin” Law Finder Doc ID # 2307414; judgment of Patn a High Court in “Shree Narayan &Anr. Vs. Mahendra Prasad Yadav & Ors.” Law Finder Doc ID # 625387; and judgment of Himachal Pradesh High Cour t in “Anil Kumar Vs. Shri Tara Dutt Sharma” Law Finder Doc ID # 1594538.

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No other argument is rai s ed on behalf of the parties. 16. I have heard ld. counsel f o r the parties and perused the case file in d etail. After giving my though t ful consideration to the rival submissions made on behalf of both the p arties, I find no merit in the submissions advanced on behalf of the petitioners for the reasons recorded he r einbelow.

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Order 6 Rule 17 CPC reads as follows:-

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“17. Amendment of pleadings. - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner an d on such terms as may be j ust, a nd all such amendmen ts shall be made as may be necessary for the purpose of de t ermining the real questions in controversy between the partie s : Provided that no application fo r amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before t h e commencement of trial.”

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A bare reading of the above provision shows that amendment is to be permitted in justiciabl e terms for the determination of the real question/controversy at hand. However, the said provision

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cannot be read in isolation of the pr o viso thereto, which further SUNENA 2025.07.01 18:30 I attest to the accuracy and integrity of this document

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categorically stipulates that “... no applicati o n for amendment shall be allowed aft e r the trial is commenced, unless the Court comes to the conclusion t h at in spite of due diligence, the party could not have raised the matter b efore the commencement of t r ial. ” Thus, prior to permitting amendment , it is incumbent upon this Co u rt to veritably conclude that despite exer c ise of due diligence, the party s eeking the amendment could not have ple a ded the facts now sought to b e incorporated. 19. In the peculiar facts of this case, this Court is unable to bring itself to the conclusion required a s per law/ stipulated in the proviso. Th e undisputed facts of the p r esent case in chronological sequence ar e that the Civil Suit (Annexure P1) was filed by the petitioners on 25.09.20 1 9; reply thereto was filed by t h e respondents on 16.12.2020 (Annexure P 2); replication was filed by the petitioner on 21.09.2021 (Annexure P3); issues were framed on 28. 1 0.2021; whereafter trial had commenced . As per the petitioners themsel v es, the alleged recordings are of 3.3.2019 i.e. the said evidence was ad m ittedly in possession of the petitioners even prior to filing of the suit. Ye t , the same find no mention in the plaint. E v en in the affidavit in evidence f iled by the petitioners before the learned trial Court as far back as on 29.08.2023, no mention whatsoever was made of the video clips dated 3.3.2019. It is only now that the sa i d video clips are sought to be incorporated by way of application for amendment dated 29.0 8 .2024 (Annexure P4). It is

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therefore c r ystal clear that the petition e rs have execrably failed to exercise due diligence as required under la w . 20. It is to be noted that the application for amendment dated 29.08.2024 (Annexure P4) filed by th e petitioners, gives no reasons whatsoever f or not mentioning the alleged recordings in the plaint, or in the affidavit of evidence. In fact, the application for amendment shows that there is no plea regarding due diligenc e . On the contrary, it has been candidly ad m itted by the petitioners/applicants that while filing the suit, the plaintiffs “ could not inform their counse l ” ; and that “ this incidence has just come to the mind of the plaintiff” ; and that “ this incidence could not be mention e d in the plaint earlier due to stress over the plaintiff……” . It has been a d mitted by counsel for the petitioners that the facts of the proposed a m endment were not included i n the plaint due to ‘oversight’. Needless to s ay, the above said reasons cite d by the petitioners constitute no ground f o r permitting amendment. As p er established tenets of law, inadvertenc e , oversight, or sheer carelessness as in the present case, constitute n o ground for permitting amendment. By way of amendment, the petition e rs cannot be permitted to f i ll the lacunae in their case. Provision of O rder 6 Rule 17 CPC is not to fill lacuna in the pleadings. 21. It is undisputed that t he only situation in which amendment after commencement of trial is envisaged is if ‘ in spite of due diligence, the party could not have raised the matter before commence m ent of trial .’ In dealing with c a ses of such nature, there is

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necessity to delicately traverse the fine line between strict interpretation of the prov i sion and proper adjudication of the matter and equitable construction of provision. In the present c a se it cannot be ignored that even thoug h the said evidence was in the possession of the petitioners, and is state d to be of utmost importance, y et it has not been mentioned either in the plaint or in the affidavit filed b y the petitioners; merely due to ‘oversight’. It is my considered vie w , that in such a situation, amendment cannot be permitted. 22. Moreover, it cannot b e ignored that the present application u nder Order 6 Rule 17 CPC for a mendment has been filed by the petition e rs much after trial had comm e nced – which, in itself is not permitted a s per law. Admittedly, plaintiff w itnesses have been examined, plaintiff evi d ence is almost at its conclusion, and cross-examination has also been c o nducted by the defendants. A perusal of the zimni orders (Annexure P - 7) shows that if not 30, the p e titioner has availed sufficient number of d ates to lead his evidence. Fur t hermore, permitting the said amendment would change the nature of t h e suit. Therefore, it would be grossly prej u dicial and inequitable to the r espondents if amendment is permitted at this belated stage. 23. This Court is well awar e of the precedent case law holding that in applications of such natur e a liberal view ought to be taken. Howe v er, keeping in view the entiret y of the above noted facts and circumstanc e s of the case, this Court is not convinced to grant the prayer

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of the petiti o ners. I am supported in my vi e w by recent judgment dated 29.2.2024, of the Hon’ble Supreme Court in Basavaraj v. Indira (SC) : Law Finder Doc Id # 2510571 wherein it is held t h at: -

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“Amendment of pleadings – O v ersight cannot be accepted as a ground to allow any amendment in the pleadings at the fag end of the trial.”.

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Reference may also be m ade to another judgment of the Hon’ble Supreme Court in Pandit Malhari Mahale v. Monika Pandit

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Mahale, (SC) : Law Finder Doc Id # 1 691426 wherein it is held as under: -

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“Civil Procedure Code, 1908, Or d er 6, Rule 17 - Amendment of Plaint - Amendment application filed after evidence begun - In absence of any finding that Court is satisfied in spite of due diligence, party could not i n troduce amendment before commencement of trial - Therefore, amendment of plaint unsustainable and set aside.”

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This Court in Rati Ram v. Inder (P&H) : Law Finder Doc

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Id # 244372 h as held as under:-

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“Civil Procedure Code, 1908, Or d er 6, Rule 17 - Amendment of Pleadings - Amendment cann o t be allowed as a matter of right -Amendment was not at a ll necessary to determine the real controversy between the p arties - The application was not bona fide as such, it w as only filed to delay the proceeding further when the s u it remained pending for seven years - Amendment right declin e .”

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26. Again in “K.B. Sharma Vs. Shri Keerti Karan Dharni”

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(P&H) Law Finder Doc ID # 205192, this Court has held that: -

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“A. Civil Procedure Code, 190 8 , Order 6, Rule 17, Proviso - Amendment of written statem e nt - After the commencement of trial, amendment of pleadin g s cannot be allowed, until and unless, the party seeking amen d ment establishes that despite due diligence, it could not r a ise the pleas sought to be incorporated by way of amen d ment - Where defendant was