Ashwani Sood vs Smt. Chanderkanta & Another
2024 Latest Caselaw 252 HP

Himachal Pradesh High Court

Ashwani Sood vs Smt. Chanderkanta & Another on 4 January, 2024

Author: Ajay Mohan Goel

Bench: Ajay Mohan Goel

                                                                            .
         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA





                                              CMPMO No.92 of 2020
                                              Decided on: 04.01.2024





    Ashwani Sood                                                        ... Petitioner.
                    Versus
    Smt. Chanderkanta & another                                         ... Respondents.




                                                 of
    Coram
    Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
    Whether approved for reporting? Yes
    _____________________________________________________
                      rt
    For the petitioner:     Mr. Sumit Sood, Advocate.
    For the respondents:    Mr. Jagmohan Singh Chandel, Advocate, for
                            respondent No.1.

                            Respondent No.2 ex parte.

    Ajay Mohan Goel, Judge (Oral)

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

Constitution of India, the petitioner has challenged order dated

18.12.2019, passed by the Court of learned Civil Judge (Senior

Division), Court No.II, Shimla, H.P., in Civil Suit No.9006218/14,

titled as Smt. Chander Kanta vs. Smt. Praveen Thakur, in terms

whereof, an application filed under Order 6, Rule 17 of the Code of

Civil Procedure by the contesting respondent herein was allowed

after impleadment of the petitioner as defendant No.2 in the Civil

Suit.

2. Learned counsel for the petitioner has submitted that no

doubt the respondent/ plaintiff after the impleadment of the

petitioner as a party defendant had a right to file an amended plaint, Whether reporters of the local papers may be allowed to see the judgment?

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but then the application filed under Order 6, Rule 17 of the Code of

Civil Procedure ought to have been specific as to what the proposed

amendments were, why they were necessitated after the

impleadment of the petitioner as a defendant and the application

ought to have been accompanied by an amended plaint. In the

of absence of these necessary ingredients learned Trial Court erred in

allowing the application.

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3. Learned counsel for the respondent/plaintiff has

submitted that there is no infirmity in the order passed by the

learned Trial Court, because the proposed amendments were duly

spelled out in the application filed under Order 6, Rule 17 of the

Code of Civil Procedure, which stands allowed by a reasoned order

passed by the learned Trial Court and now in terms of the directions

passed by the Court, the respondent/ plaintiff shall be filing an

amended plaint to which written statement can be filed by the

petitioner. Accordingly, he prayed that the present petition being

devoid of any merit be dismissed.

4. Having heard learned counsel for the parties and having

carefully gone through the documents appended with the petition

including the application filed under Order 6, Rule 17 of the Code of

Civil Procedure as well as the order impugned, this Court is of the

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considered view that there is some merit in the grievance raised by

the petitioner by way of this petition.

5. Order 1, Rule 10 (4) of the Code of Civil Procedure

provides that where a defendant is added, the plaint shall unless the

Court otherwise directs, be amended in such manner as may be

of necessary and amended copies of the summons and of the plaint

shall be served on the new defendant and if the Court thinks fit, also rt on the original defendant.

6. Order 6, Rule 17 of the Code of Civil Procedure deals

with amendment of pleadings and it provides that the Court may at

any stage of the proceedings allow either party to alter or amend his

pleadings in such manner and on such terms as may be just, and

also such amendments shall be made as may be necessary for the

purpose of determining the real question in controversy between the

parties. Provided that no application for amendment shall be allowed

after the trial has commenced, unless the Court comes to the

conclusion that in spite of due­diligence, the party could not have

raised the matter before the commencement of the trial.

7. Order 6, Rule 18 of the Code of Civil Procedure provides

as under:­

"18. Failure to amend after order­ If a party who has obtained an order for leave to amend does not amend

.

accordingly within the time limited for that purpose by

the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be

permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court."

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8. In the present case, the proviso appended to Order 6,

Rule 17 of the Code of Civil Procedure does not comes into play rt because here the respondent/plaintiff was having a statutory right

to amend the plaint after the impleadment of the petitioner as a

party defendant. However, fact of the matter remains that the

application which was filed under Order 6, Rule 17 of the Code of

Civil Procedure by the respondent/ plaintiff, seeking amendment of

the plaint was completely vague in the absence of specific

averments therein as to what actually the respondent/plaintiff

intended to incorporate in the plaint by way of amendment and

where exactly in the plaint the amendments were to be incorporated.

Besides this, why these amendments were necessary after the

impleadment of the defendant as a party defendant was also not

spelled out in the application. In the absence of these necessary

ingredients, this Court is of the considered view that the learned

Trial Court erred in allowing the application filed by the

respondent/plaintiff under Order 6, Rule 17 of the Code of Civil

.

Procedure.

9. After the impleadment of the petitioner as a party

defendant, though the respondent/ plaintiff was having the right to

amend the plaint, but then the same was not an un­fattered right.

The statutory provision as is provided in Order 1, Rule 10 (4) of the

of Code of Civil Procedure itself states that where a defendant is added

the plaint shall unless the Court otherwise directs, be amended in rt such manner "as may be necessary". But natural, this has to be

spelled out in the application which is to be filed under Order 6,

Rule 17 of the Code of Civil Procedure as to what necessitates the

proposed amendments after the impleadment of a party as a

defendant. This was clearly lacking in the application filed by the

respondent/plaintiff in the present case. Besides this, as observed

hereinabove also, the proposed amendments ought to have been

clearly and distinctly spelled out with reference to the place where

these amendments were intended to be added in the amended

plaint.

10. Accordingly, in view of the above discussion, as this

Court finds that the impugned has been passed without taking into

consideration these necessary ingredients, this petition succeeds.

Order dated 18.12.2019, passed by the Court of learned Civil Judge

.

(Senior Division), Court No.II, Shimla, H.P., in Civil Suit

No.9006218/14, titled as Smt. Chander Kanta vs. Smt. Praveen

Thakur, is set aside, with liberty to the respondent/ petitioner to file

a fresh application under Order 6, Rule 17 of the Code of Civil

Procedure, seeking amendment of the plaint in terms of the

of observations made in this order.

11. Before parting with the case, this Court deems it rt necessary to pass a direction that all the Judicial Officers in the

State of Himachal Pradesh be sensitized that while dealing with

applications filed under Order 6, Rule 17 of the Code of Civil

Procedure, be it for the amendment of the plaint or that of the

written statement, the ingredients which mandatorily should be

there in the application, should be scrutinized by the Courts below

and if the same are absent, then appropriate orders should be

passed thereupon by the learned Courts below. The applications

necessarily should be supported by the affidavit of the party seeking

amendment and in the absence of the affidavit the applications

should be rejected forthwith.

12. Learned Registrar General, High Court of Himachal

Pradesh is requested to make a copy of this order available to all the

learned District Judges for further circulation to the learned Judicial

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Officers, so that the order is complied with in letter and spirit. In

addition, all the learned Judicial Officers be also further sensitized

that except formal applications, no application which is not

accompanied by the affidavit of the party concerned and duly

attested by the Oath Commissioner or the Notary as the case may

of be, be taken on record by them and if any application is filed which

does not fulfills these conditions, the same be dealt with accordingly.

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13. The petition stands disposed of. Pending miscellaneous

applications, if any, also stand disposed of. Interim order, if any,

stands vacated.

(Ajay Mohan Goel) Judge January 04, 2024 (Rishi)