Himachal Pradesh High Court
Decided On: 27.08.2025 vs Ravinder Singh And Another on 27 August, 2025
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
2025:HHC:29026
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
CMPMO No. 244 of 2025
Decided on: 27.08.2025
Tara Chand ... Petitioner
Versus
Ravinder Singh and another ... Respondents
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
___________________________________________________________________
For the petitioner : Mr. Lokesh Thakur, Advocate vice Mr.
Pranav Dhar, Advocate.
For the respondents : Mr. Rajesh Kashyap, Advocate for
respondent No. 1.
Ajay Mohan Goel, Judge (Oral)
By way of this petition filed under Article 227 of the
Constitution of India, the petitioner has assailed order dated
08.01.2025, passed by the learned Appellate Court, in terms
whereof, an application filed under Order VI, Rule 17 of the Code of
Civil Procedure by the respondents herein during the pendency of
the appeal for the amendment of the plaint has been allowed.
2. Learned Counsel for the petitioner has referred to the
application filed under Order VI, Rule 17 of the Code of Civil
Procedure, copy whereof is appended with the petition as Annexure
P-1 and submitted that it was simply mentioned therein that the
appeal was pending before the learned Court and as at the time of
Whether reporters of the local papers may be allowed to see the judgment?
2025:HHC:29026
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filing of the suit, the plaintiff due to inadvertent omission, could not
claim recovery of earnest money of Rs. 90,000/-, therefore, the
plaintiff be allowed to amend the plaint and he may be permitted to
make an alternative prayer for recovery of Rs.90,000/- alongwith
interest from the date of agreement to sell, i.e. 02.12.2006. He
further submitted that learned Appellate Court erred in allowing this
application without appreciating that in the absence of the applicant
demonstrating that the proposed amendment could not be
incorporated initially despite due diligence, there was no occasion for
the learned Appellate Court to have had allowed the amendment.
3. On the other hand, Mr. Rajesh Kashyap, learned
Counsel for the respondent has submitted that as the proposed
amendment was innocuous and as the same was necessitated on
account on inadvertent omission, therefore, the act of the learned
Appellate Court in allowing the application cannot be faulted with.
4. I have heard learned Counsel for the parties and also
carefully gone through the pleadings as well as documents appended
therewith, including the impugned order.
5. Undisputed facts are that the respondent herein filed a
Civil Suit for specific performance against the present petitioner in
the year 2012. The suit was dismissed by the learned Trial Court on
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20.07.2022. During the pendency of the appeal, an application was
filed by the plaintiff/appellant under Order VI, Rule 17 of the Code
of Civil Procedure in the year 2023. A perusal of the application
demonstrates that all that is mentioned in para 3 thereof is that at
the time of filing of the suit, the plaintiff due to inadvertent omission
has not claimed the recovery of earnest money, i.e. Rs. 90,000/- and
therefore, the plaintiff wanted to amend the plaint on this count by
adding the prayer as mentioned in the application.
6. In terms of the impugned order, this prayer has been
allowed by the learned Appellate Court by inter alia holding that as
the proposed amendment in the alternate was by way of an
amendment in the reliefs prayed for by the applicant/plaintiff and as
the same would certainly help the Court in deciding the controversy
and would not change the nature of the suit between the parties,
therefore, the same can be allowed. Learned Court also held that as
far as the issue of the claim being time-barred, as appeal was in
continuation of the suit, therefore, as the main relief prayed for was
within limitation, the ancillary relief was also to be construed within
limitation.
7. This Court is of the considered view that the findings
returned by the learned Appellate Court are not sustainable in the
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eyes of law. In terms of the provisions of the Order VI, Rule 17 of the
Code of Civil Procedure, all amendments, which are necessary for
the adjudication of the case, can be allowed by the Court at any
stage. However, in terms of the proviso added thereto, it is clear
that in case the proposed amendment is sought after the
commencement of the trial, then, no amendment shall be allowed
until and unless the party seeking amendment demonstrates due
diligence.
8. In the present case, the Civil Suit was filed in the year
2012. The amendment was sought in the year 2023, that too before
the learned Appellate Court and on the ground of inadvertence. It is
settled law that negligence is antithesis to due diligence. Because the
onus was upon the applicant/plaintiff to demonstrate due diligence,
which it utterly failed to demonstrate in the application, therefore,
there was no occasion for the learned Appellate Court to have had
allowed the application so as to permit the plaintiff to carry out the
proposed amendment after 11 years from the date of filing of the suit
and that too during pendency of the appeal before the learned
Appellate Court. Not only this, this Court does not concur with the
findings returned by the learned Appellate Court that the alternative
prayer which was for recovery of Rs. 90,000/- was not time-barred.
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This Court is of the considered view that whenever any amendment
is prayed for by a party, then obviously, the Court is duty bound to
look into this aspect of the matter that as to whether the proposed
amendment being prayed for is time-barred or not. In case, time-
barred reliefs are permitted to be introduced by way of amendments,
then this would amount to giving premium to the act of omission of
such a party, which can never be the spirit of Order VI, Rule 17 of
the Code of Civil Procedure. Of course, in a given set of
circumstances, where the aspect of delay is arguable, the prayer of
amendment could be allowed and the issue of limitation is framed
separately for decision (see: Life Insurance Corporation of India
versus Sanjeev Builders Private Limited and another, (2022) 16
Supreme Court Cases 1).
Therefore, as this Court is satisfied that the belated
application, which was filed by the plaintiff for the amendment of the
plaint during the pendency of the appeal was not maintainable, as it
was not fulfilling the parameters laid down in Order VI, Rule 17 of
the Code of Civil Procedure, and as this aspect of the matter has
been completely ignored by the learned Court below while allowing
the said application, this petition is allowed and order dated
08.01.2025, passed by the learned Appellate Court in Civil Appeal
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No. 14 of 2022, titled Ravinder Singh Vs. Tara Chand is set aside.
Pending miscellaneous application(s), if any, also stand disposed of
accordingly.
(Ajay Mohan Goel)
Judge
August 27, 2025
(narender)
