Himachal Pradesh High Court
Mohinder Singh vs Shri Ashok Kumar And Others on 11 April, 2019
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No.: 508 of 2018.
.
Decided on: 11.04.2019.
Mohinder Singh ....Petitioner.
Versus
Shri Ashok Kumar and others ...Respondents.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
For the petitioner
r : Mr. Goldy Kumar, Advocate.
For the respondents Mr. Bhupender Gupta, Sr.
:
Advocate with Mr. Ajit Jaswal,
Advocate.
Ajay Mohan Goel, Judge (Oral)
By way of this petition filed under Article 227 of the Constitution of India, challenge is laid to the order passed by the Court of learned Civil Judge (II), Kangra, District Kangra, HP, in CMA No. 14 of 2013, filed in Civil Suit No. 13 of 2013, vide which, an application filed under Order 6, Rule 17 of the Code of Civil Procedure by the petitioner/plaintiff praying for amendment in the plaint stands dismissed.
2. Brief facts necessary for adjudication of the petition are as under:-
::: Downloaded on - 12/04/2019 21:58:39 :::HCHPPetitioner/plaintiff (hereinafter referred to as the 'plaintiff') has filed a suit for grant of decree of declaration .
alongwith permanent prohibitory injunction against the defendants qua the suit land on the ground that he is permanently residing over the suit land and the same belongs to the plaintiff from the time of ancestors. As per the plaintiff, defendants, who are outsiders and had become co-owners by way of subsequent purchase from Sh. Sahib Singh, were interfering in the suit land. On these pleadings, the suit is filed.
3. The suit was filed in the year 2013. As is evident from the record appended with the petition, Issues were framed by learned trial Court on 14.09.2013 and after having availed about nine opportunities by the plaintiff to lead his evidence, in the year 2016, plaintiff filed an application under Order 6, Rule 17 of the Code of Civil Procedure (hereinafter referred to as the 'Code') praying for permission to amend the plaint.
4. It was mentioned in the application that the plaintiff intended to incorporate certain amendments which were stated in paras 3 to 6 of the same and that earlier same ::: Downloaded on - 12/04/2019 21:58:40 :::HCHP could not be incorporated inadvertently and due to clerical mistake.
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5. The application was opposed by the defendants on the ground that the application was not maintainable as it was not mentioned therein that despite due diligence, the proposed amendments could not be incorporated in the original plaint. It was also stated in the reply that filing of the application was delay tactic as the same was filed after plaintiff had failed to lead evidence even after availing nine opportunities for the same.
6. Vide impugned order, learned Court below has dismissed the application by holding that the applicant had made prayer simplicitor for grant of necessary permission to incorporate necessary amendments in the plaint and there was no pleading that despite due diligence on the part of the plaintiff, the proposed amendments could not be incorporated in the original plaint. It further held that the proposed amendments, if permitted, would change the nature of the suit, as in the original plaint, plaintiff had averred that a small share in the suit land was purchased by the father of the defendants Shri Sahib Singh and thereafter defendants ::: Downloaded on - 12/04/2019 21:58:40 :::HCHP have built up their pakka house on their share but by way of proposed amendments, plaintiff wanted to omit the fact of .
purchase of the suit land by father of the defendants and rather a plea was being set up that defendants were coming in possession of the suit land prior to the sale deed as tenants. Learned trial Court thus held that if proposed amendments were allowed, it would substitute the original case with new case and lead to a situation wherein contrary pleas would be permitted to be raised on behalf of the plaintiff. On account of said reasoning, learned trial Court dismissed the application.
7. Feeling aggrieved, the plaintiff has filed this petition.
8. I have heard learned Counsel for the parties and also perused the impugned order as also the record appended with the petition.
9. It is not in dispute that the suit was filed in the year 2013. It is also not in dispute that the issues were framed in the year 2013 itself. It is also not in dispute that after the framing of the issues, nine opportunities were granted to the plaintiff by the learned Court below to lead his ::: Downloaded on - 12/04/2019 21:58:40 :::HCHP evidence, but plaintiff failed to lead the same. It is thereafter that application under Order 6, Rule 17 of the Code was filed .
with the prayer to amend the plaint. A perusal of the averments made in the application filed under Order 6, Rule 17 of the Code demonstrates that there is not even a single word mentioned therein as to why the proposed amendments could not be incorporated in the original plaint despite due diligence. In fact, there is no explanation given in the application as to why the proposed amendments were not earlier incorporated.
10. Order 6, Rule 17 of the Code provides that Court can allow amendment of pleadings by either party at any stage provided that no application for amendment can be allowed by the Court 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 commencement of the trial. Meaning thereby that even if the Court is satisfied that the amendment may be necessary to determine the real controversy between the parties, yet before allowing such application, the Court has to arrive at a ::: Downloaded on - 12/04/2019 21:58:40 :::HCHP conclusion that despite due diligence, the party could not raise the matter before the commencement of the trial.
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11. Coming to the facts of the present case. As already mentioned above, there is no averment made in the application that despite due diligence, the proposed amendment could not be incorporated in the original plaint.
Meaning thereby that neither the learned Court below nor this Court has the benefit to go into the reasons for not incorporating those pleadings in original plaint despite due diligence because the same do not find mention in the application itself. Besides this, the findings given by the learned trial Court that in case the proposed amendment is allowed, the same would introduce a whole new case and would lead to a situation that contrary pleas would be permitted to be raised by the plaintiff, is correct finding. It is evident from the record that plaintiff intends to withdraw by way of amendment earlier pleadings to the effect that father of defendants had purchased small share in the suit land from one Sahib Singh, upon which pakka house stood constructed, with amended pleadings that the defendants were coming in possession of the suit land before the said sale deed as ::: Downloaded on - 12/04/2019 21:58:40 :::HCHP tenants. This, if permitted, would obviously change the very nature of the suit and therefore, also the plea of the petitioner .
that the proposed amendment if allowed would not cause any prejudice to the defendants and that the proposed amendment is necessary for adjudication of the dispute, holds no merit as by way of the proposed amendment, the plaintiff in fact wants to introduce a completely new case and that too without justifying in the application as to why despite due diligence, said pleadings were not incorporated in the original plaint.
In view of observations made hereinabove, as this Court is satisfied that there is no infirmity in the order impugned, nor the same suffers from any jurisdictional error, this petition being devoid of merit, is dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly.
(Ajay Mohan Goel) Judge April 11, 2019 (narender) ::: Downloaded on - 12/04/2019 21:58:40 :::HCHP