_________________________________________________________ vs Sh. Pawan Kashyap And Others
2023 Latest Caselaw 5900 HP

                                                  1

     IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                             CMPMO No. 491 of 2022




                                                                                                       .
                         Date of Decision: 16.05.2023





_________________________________________________________
Sh. Inder Dutt                                  ....Petitioner.





                            Vs.
Sh. Pawan Kashyap and others                                                                       .....Respondents.

Coram:





The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes.

For the petitioner:                                         Ms. Kanta Thakur, Advocate.

For the respondents:                                        Mr. Sudhir Thakur, Senior Advocate, with

                                                            Mr. Karun Negi, Advocate, for respondents
                                                            No. 1 and 2.
                                                            Mr. Anand Sharma, Senior Advocate, with
                                                            Mr. Karan Sharma, Advocate, for


                                                            respondents No. 3 and 4.

Ajay Mohan Goel, Judge (Oral):

By way of this petition filed under Article 227 of the Constitution

of India, the petitioner has prayed for setting aside order, dated 28.07.2022

(Annexure P-4), in terms whereof, an application filed by the petitioner under

Order VI, Rule 17 of the Code of Civil Procedure for amendment of the plaint

has been dismissed by the learned Trial Court.

2. The case of the petitioner is that she has filed a suit for

declaration that she is co-owner of the suit property measuring 50-5 bighas

to the extent of 2/21 share, situated in Mauza Sheothal, Tehsil and District

1 Whether the reporters of the local papers may be allowed to see the Judgment?

Solan, H.P. As per the petitioner, she has further sought declaration that

Power of Attorney document registered on 30.09.2008 in the office of Sub-

.

Registrar, Solan is void ab initio and sale deed No 1267/2008, dated

07.11.2008 registered on the basis of said Power of Attorney is also wrong,

illegal and void ab initio and is un-enforceable. Consequential relief of

permanent prohibitory injunction against the respondents/defendants has

also been prayed for. According to the petitioner, at the time of drafting of

the plaint, it could not be pleaded therein that in case the Court, in the

course of adjudication of the case, comes to the conclusion that defendants

No. 2 to 4 were in possession of the suit property, on the basis of illegal

sale deed, then the plaintiff was entitled for the relief of possession of the

suit land from the defendants in the alternative. According to the petitioner,

this fact came into the notice of the petitioner at the time of preparing the

matter for the purpose of cross-examination of the witnesses on 10 May,

2022 and immediately thereafter, an application under Order VI, Rule 17

of the Code of Civil Procedure was filed seeking amendment in the plaint,

which application has been dismissed erroneously by the learned Trial

Court in terms of the impugned order.

3. Learned counsel for the petitioner has argued that dismissal

of the application by the learned Trial Court is totally uncalled for and

unwarranted, because the proposed amendments were necessary for

adjudication of the Civil Suit and had the proposed amendments been

allowed, no prejudice would have had caused to the other party. Learned

counsel has further argued that as the impugned order suffers from irregularities

.

and illegalities, the same is liable to be set aside, as while dismissing the

application filed for amendment of the plaint learned Trial Court neither took into

consideration the controversy between the parties nor it considered the proposed

amendments necessary for adjudication of the Civil Suit. Accordingly, she

submitted that the present petition be allowed and the impugned order be

quashed and set aside. No other point was urged.

4. The prayer of the petitioner was opposed by learned counsel for

the respondents. Learned Senior Counsel appearing for the respondents

respectively argued that as the application was filed by the plaintiff at a belated

stage and without demonstrating that there was exercise of due diligence by the

plaintiff in the matter, the application seeking amendment was rightly dismissed

by the learned Trial Court, as the same was nothing but an attempt to fill up the

lacunae. Accordingly, it was prayed that the present petition being devoid of any

merit be dismissed.

5. I have heard learned counsel for the parties and have also carefully

gone through the documents appended with the petition as well as the order

under challenge.

6. The suit filed by the petitioner, copy whereof is appended with the

petition as Annexure P-1 was filed in the year 2009. The application seeking

amendment of the plaint was filed in the month of May, 2022. The reasons as to

why the amendment in the plaint stood necessitated, as stands spelled out in the

application filed under Order VI, Rule 17 of the Code of Civil Procedure are that

certain facts could not be pleaded by the plaintiff at the of the framing of the suit,

but as this mistake was noticed by learned counsel for the plaintiff at the time of

.

preparing the case for cross- examination of certain witnesses, the application

was prepared and filed.

7. Learned Trial Court dismissed the application by, inter alia, holding

that the suit for declaration was filed by the plaintiff on 6 January, 2009 and

written statement stood filed thereto on 24 April, 2009. The issues were framed

on 14th July, 2011 and the evidence of the plaintiff which started in the month of

November, 2009, was concluded on 06.08.2019 and thereafter. the defendant's

evidence was also concluded on 11.05.2022, when the application seeking

amendment of the plaint was filed. Learned Court has further held that the plaintiff

has failed to explain that if these facts in fact came to the knowledge of the

counsel at the stage of the evidence of the plaintiff, then why he kept on waiting

till the year 2022 for the purpose of filing the application. Learned Court further

held that the plaintiff had otherwise failed to explain that when the suit was filed

in the year 2009 and plaintiff's evidence was concluded in the year 2019, whereas

the facts intended to be brought on record pertain to the year 2008, why these

facts were not earlier brought to the notice of the Court by seeking amendment

in the plaint. Learned Court further held that there was nothing in the application

suggestive of the fact as to why despite due diligence, the proposed amendment

earlier could not be incorporated in the pleadings. It also held that over sight

pleaded by the plaintiff could not be made the ground for allowing an amendment

in the plaint after a period of about 12 years.

8. This Court is of the considered view that the findings that have

been returned by the learned Trial Court while dismissing the application seeking

.

amendment in the plaint are correct findings, which do not call for any

interference. The chronological order with regard to the progress of the case

which has been mentioned in the order passed by the learned Trial Court could

not be proved to be incorrect during the course of arguments by learned counsel

for the petitioner. Under the provisions of Order VI, Rule 17 of the Code of Civil

Procedure, amendment to the pleadings can be allowed at any stage, but the

condition which a party has to inter alia satisfy is that despite due diligence the

amendment could not have been got incorporated by the parties in the pleadings

earlier. In the present case, the petitioner has miserably failed to demonstrate

this fact. The application for amendment of the plaint was filed in the year 2022,

whereas, the Civil Suit itself was instituted by the plaintiff in the year 2009. Except

the mentioning of over sight, there is no other explanation given in the application

for not incorporating the proposed amendment in the initial pleadings. It is settled

law that "error, inadvertence and mistake" are antithetical to "due diligence". In

fact, it is apparent from the averments made in the application that "due diligence"

was not exercised by the plaintiff earlier, which had necessitated the filing of the

application seeking amendment in the plaint. It is not the case of the petitioner

that the proposed amendments were with regard to those events which took

place during the pendency of the Civil Suit. This also demonstrates that the filing

of the application under Order VI, Rule 17 of the Code of Civil Procedure was

nothing but an attempt by the petitioner to make good the lacunae in the case of

the petitioner, which is not the intent of the provisions of Order VI, Rule 17 of the

Code of Civil Procedure.

.

9. In view of the above discussions, as this Court finds no infirmity

with the order passed by the learned Trial Court, in terms whereof the application

filed by the petitioner under Order VI, Rule 17 of the Code of Civil Procedure has

been dismissed, this petition being devoid of any merit is dismissed, so also

pending miscellaneous applications, if any.

(Ajay Mohan Goel) Judge May 16, 2023 (bhupender)