IN THE HI 273 Lal Chand Tan Balvinder Kau CORAM: Present:- NIDHI GUPTA, of India is filed dated 03.07.2 Division, Kur (Annexure P7 07.03.2017 (A during the pe has been dism 2. Civil Suit (Ann Kulvinder Sing herein, had en E HIGH COURT OF PUNJAB AND HA Tanwar Vs. Kaur & Others HON’BLE MS. JUSTICE NID Mr. R.D. Bawa, Advocate Mr. Rishabh Rana, Advocat Mr. Randhir Bawa, Advocat for the petitioner. Mr. Akshay Jindal, Advocate for the respondents. *** PTA, J. Present petition under Art filed by the plaintiff seeking setting 07.2023 (Annexure P8) passed by th Kurukshetra whereby, the app P7) filed by the petitioner for a 7 (Annexure P4), to include/ claim pendency of his suit the petitione dismissed. Brief facts of the case are (Annexure P4) seeking declaration Singh predecessor-in-interest of t d entered into Agreement dated 17 p. 1 D HARYANA AT CHANDIGARH CR-4666-2023 (O&M) Date of decision: 24.02.2025 ...Petitioner(s) ...Respondent(s) NIDHI GUPTA ocate ocate ocate r Article 227 of the Constitution ting aside of the impugned order the learned Civil Judge, Junior application dated 03.12.2022 or amendment of plaint dated laim the relief of possession as, tioner was dispossessed forcibly, are that the petitioner had filed ion to the effect that deceased of the defendants/respondents d 17.02.2007(Annexure P1) with 8 SUNENA 2025.03.04 12:31 I attest to the accuracy and integrity of this document the petitioner was handed o Agreement to consideration the Sale Deed was filed by t representative the contract property in f Agreement da mandatory in Kulvinder Sing Decree for p defendants fr property, caus the plaintiff ov 3. filed the writte 4. 09.07.2019 (A Kurukshetra f witnesses afte 05.09.2007 or ner to sell the suit property. Physic ed over to the petitioner at the tim t to Sell dated 17.02.2007, up tion of Rs.11,70,000/-. Kulvinder Sin eed registered on 11.09.2007.The by the petitioner on 7.3.2017 as, atives of deceased-Kulvinder Singh a act and get executed and registe in favour of the petitioner as pe t dated 17.02.2007. Thus, petitione y injunction directing the defenda Singh as agreed by him vide Ag or permanent injunction was al s from ousting and dispossessin causing any kind of interference in iff over the same. The defendants/responden ritten statement dated 30.03.2017 During trial the petition (Annexure P6) before the learned ra for allowing secondary evide after allowing the secondary eviden 7 original Agreement dated 17.02.2 p. 2 ysical possession of the suit plot e time of execution of the said upon payment of total sale r Singh had also promised to get The present suit (Annexure P4), as, the defendants being legal gh are legally bound to perform gistered the Sale Deed of suit s per terms and conditions of ioner had also sought decree of ndants to perform the part of Agreement dated 17.02.2007. also sought restraining the essing the plaintiff from suit e in the peaceful possession of ndents herein, had appeared and 017 (Annexure P5). itioner filed application dated rned Civil Judge, Junior Division, vidence and to summon the idence; thereby pleading that on .02.2007 was misplaced by him. 8 SUNENA 2025.03.04 12:31 I attest to the accuracy and integrity of this document The petitioner no avail. As su Police Chowk petitioner als certified copy connivance wi said entry/rec the intention petitioner m Kurukshetra ag of the Agreem constrained t allowing seco learned trial C 5. during the pe outbreak of C illegally and un behind the pe illegally took p plot in questio application un amend the pl oner tried his best to trace out orig s such, the petitioner lodged DDR owki Third Gate Kurukshetra U also requested Advocate-cum- opy of Entry No.80 dated 17.02.200 e with the defendants dishonestly t /record mentioning the Agreement tion to cause damage to the pl moved written complaint to ra against defendants and Notary Pu reement to Sell dated 17.02.2007 d to file application dated 09.0 secondary evidence; which applic ial Court vide order dated 14.10.20 Ld. Counsel for the petiti e pendency of the suit in the mon of Covid-19, the defendants in c d unlawfully demolished the bound e petitioner and gathered the buildi ok possession of suit property, and estion. Accordingly, on 03.12.2022, n under Order 6 Rule 17 CPC (Ann e plaint to add new Para 9A, to th p. 3 original Agreement, however, to DDR No.22 dated 11.09.2007 in University, Kurukshetra. The -Notary Public to supply a .2007. However, Notary Public in stly tore the page containing the ent dated 17.02.2007 only with plaintiff. On 09.05.2014, the to Superintendent of Police, ry Public for destroying the entry 07. As such, the petitioner was 09.07.2019 (Annexure P6) for pplication was allowed by the .2022. etitioner submits that however, month of July, 2020, upon the in connivance with each other undary wall of the suit property uilding material. The defendants and raised construction on the 022, the petitioner filed present (Annexure P7) for permission to o the effect that the possession 8 SUNENA 2025.03.04 12:31 I attest to the accuracy and integrity of this document and constructi and unlawfu amended/sub get possessio construction r amendment w ld. trial Court order dated 0 impugned ord 6. respondents/d of the petition 17.02.2007. It placed on reco was ever ente therefore que arise. In fact, record. It is c specific perfo maintainable. due diligence application wa ruction raised by the defendants ov awful. The prayer clause w substituted to the effect that decre ession of the suit property aft on raised by the defendants. It is c nt was necessary being subsequen ourt was in error in dismissing the ed 03.07.2023 (Annexure P8). It is order be set aside. Per contra, learned ts/defendants vehemently opposes titioner and totally denies the alleg . It is submitted that original Agre record by the petitioners. It is den entered into between Kulvinder Si question of delivery of possession act, Agreement to Sell is not neith is contended that the petitioner performance of alleged Agreem ble. Moreover, the trial is at the sta nce has been exercised by the pe was not maintainable and has bee p. 4 s over the suit property is illegal was also sought to be ecree that the petitioner should after demolishing the illegal is contended that the proposed uent events; and therefore, the the application vide impugned It is accordingly prayed that the rned counsel for the oses the prayer made on behalf alleged Agreement to Sell dated Agreement to Sell has not been denied that such an Agreement r Singh and the petitioner; and sion to the petitioner, does not either produced nor proven on ner should have filed suit for eement. Present suit is not e stage of defence evidence. No e petitioner. Therefore, present been rightly dismissed. 8 SUNENA 2025.03.04 12:31 I attest to the accuracy and integrity of this document 7. parties. 8. in minute deta 9. the petitioner petitioner at t regard, Petitio the plaint (Ann 10. categorically statement dat No other argument is mad I have heard learned coun detail. It has been vehemently ass oner that possession of suit prop at the time of execution of the Agre titioner has made reference to the (Annexure P4) that: - “9. That the possession of the suit to the plaintiff by the deceased Ku the date of execution of agreeme and since then the plaintiff is in t occupation of the suit property obstacle. The plaintiff has also rai property.” The above assertions of lly denied by the respondents/ dated 30.03.2017 (Annexure P5), as “9. That para-No.9 of the plain denied. The story mentioned in concocted. When there is no alle plaintiff scribed by late Kulwinde giving possession of alleged plo agreement to sell dated 17.02.20 plaintiff never remained in posses the facts given in this para are raised any foundation as alleged i p. 5 made by learned counsel for the ounsel and perused the case file y asserted by learned counsel for property was delivered to the Agreement on 17.2.2007. In this the averments made in Para 9 of suit property was also delivered ed Kulvinder Singh at the spot on eement to sell dated 17.02.2007 s in the exclusive possession and erty without any hindrance and o raised foundation over the suit of the petitioner have been ts/defendants in their written as follows:- plaint is wrong and specifically ed in this para is wrong and alleged agreement in favour of inder Singh, so the question of d plot on the basis of alleged 2.2007 does not arise at all. The ossession of the alleged plot and are totally wrong nor he ever ged in this para.” 8 SUNENA 2025.03.04 12:31 I attest to the accuracy and integrity of this document 11. the petitioner execution of whose presen as to on wh property is me Sell dated 17. Admittedly, th 12. “17. Am proceedi such ma amendm determin Provided the trial that in s matter b 13. categorically be allowed aft conclusion tha matter before 14. dated 22.05.2 thereafter. The From the above, it would oner to the effect that possession of the Agreement, is incorrect. sence the possession was delivere which date the petitioner was d s mentioned. The plaintiff’s case is 17.02.2007 which is not produced y, there is no Sale Deed pursuant to Furthermore, Order 6 Rule . Amendment of pleadings. -The Cou ceedings allow either party to alter manner and on such terms as endments shall be made as may be n ermining the real questions in contro vided that no application for amend trial has commenced, unless the Co t in spite of due diligence, the part tter before the commencement of tria A bare reading of the abov stipulated therein that “...no app d after the trial is commenced , un that in spite of due diligence, the pa fore the commencement of trial.” In the present case, issu 5.2018. Thus, the present applicati . Thus, the present applicati . The only situation in which amend p. 6 uld appear that the assertion of ssion was delivered at time of t. It is not mentioned as to in vered. Even no details regarding as dispossessed from the suit e is based on the Agreement to ced on record by the petitioner. t to the Agreement to Sell. Rule 17 CPC reads as under: - e Court may at any stage of the alter or amend his pleadings in as may be just, and all such be necessary for the purpose of ntroversy between the parties: endment shall be allowed after e Court comes to the conclusion party could not have raised the of trial.” above proviso shows that it is very application for amendment shall , unless the Court comes to the he party could not have raised the issues were framed vide order ication could not have been filed endment after commencement 8 ery all the the SUNENA 2025.03.04 12:31 I attest to the accuracy and integrity of this document of trial is envis raised the mat case it has bee Yet, applicatio 03.12.2022.Cle diligence also. belated stage, 15. Para 6 of the im Ju nvisaged is if ‘in spite of due diligen matter before commencement of tr been alleged that the petitioner w ation for amendment has been file .Clearly, therefore, the petitioner also. The matter is now at the stage age, application of the petitioner can Reasoning of the learned he impugned order which reads as f “6. Perusal of the case file, it is re is at the stage of secondary ev plaintiff filed an application fo proving the agreement to sell da allowed by this Court vide order submission of the plaintiff that property was illegally taken demolishing the wall, therefore delivered after vacating the sam the present application, it is reve month or year has been mentione that when the plaintiff was d property. It has only been averre that in the month of July, 2020, th Court was not going on due t defendants, in collusion with each the boundary wall/foundation gathered the building materia construction over the plot in qu mentioned that this construction July, 2020. Even if it is presu dispossessed from the suit prop 2020, then also, the present appli plaintiff in December, 2022 i.e. a years. Further, the Court is of th p. 7 ligence, the party could not have of trial.’ However, in the present r was dispossessed in July 2020. filed 2 1/2 years thereafter, on ner had failed to exercise due tage of defence evidence. At this r cannot be entertained. ned trial Court is contained in as follows:- is revealed that the present case y evidence of the plaintiff. The n for secondary evidence for ell dated 17.02.2007, which was rder dated 14.10.2022. It is the that the possession of the suit en by the defendants after fore, the same may kindly be same from the spot. Perusal of revealed that no specific date, tioned in the present application as dispossessed from the suit verred in the present application 0, the functioning of the Hon'ble ue to Cavid-19, therefore, the each other, illegally demolished ion of the suit property and terial with a view to raise n question, but it has not been ction was made in the month of resumed that the plaintiff was property in the month of July, application has been filed by the i.e. after a gap of more than 2 of the view that if the present 8 SUNENA 2025.03.04 12:31 I attest to the accuracy and integrity of this document 16. to dispute or c 17. 18. 24.02.2025 Sunena Whether Whether application is allowed, then the would be changed. Further, th standing on agreement to sell dat required to be proved and at this to establish that he was in posses in whose presence, the possessio delivered to him. Further, the pla qua the agreement to sell an agreement has been placed on possession of the suit property w has not been mentioned therein.” Learned counsel for the pe or controvert the aforesaid facts an In view of the above, prese Pending application(s) if an ther speaking/reasoned: Yes/No ther reportable: Yes/No p. 8 the nature of the present suit r, the case of the plaintiff is ll dated 17.02.2007, which is still t this stage, the plaintiff is failed ssession of the suit property and ession of the suit property was e plaintiff has sought declaration ll and photocopy of the said d on record, but the fact that rty was delivered to the plaintiff ein.” e petitioner is prima facie unable s and findings. resent petition is dismissed. if any also stand(s) disposed of. (Nidhi Gupta) Judge /No /No 8 SUNENA 2025.03.04 12:31 I attest to the accuracy and integrity of this document