Himachal Pradesh High Court

Reserved On : 05.12.2024 vs Babita Rani on 6 January, 2025

Author: Virender Singh

Bench: Virender Singh

                                        1                                 2025:HHC:837



    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                CMPMO No.             :   42 of 2023
                                                Reserved on : 05.12.2024
                                                Decided on            : 06.01.2025


Harbans Lal and others                                                ...Petitioners

                                            Versus

Babita Rani                                                           ...Respondent


Coram

The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 Yes.

For the petitioners: Ms. Reeta Hingmang, Advocate.

For the respondent: Mr. Dheeraj K. Vashisht and Ms. Shrutika, Advocates.

Virender Singh, Judge.

Petitioners have filed the present petition, under

Article 227 of the Constitution of India, against order,

dated 3rd January, 2023, passed by the Court of learned

Civil Judge, Court No. III, Una, District Una, H.P.

(hereinafter referred to as 'the trial Court'), in Civil Suit No.

39 of 2015, titled as Harbans Lal and others versus Babita

Whether Reporters of local papers may be allowed to see the judgment? Yes.

2 2025:HHC:837

Rani, whereby the learned trial Court has dismissed the

application, filed under Order VI Rule 17 of the Code of

Civil Procedure (hereinafter referred to as 'CPC'), filed by

the petitioners-plaintiffs (hereinafter referred to as 'the

impugned order').

2. For the sake of convenience, the parties to the

lis are, hereinafter, referred to, in the same manner, as

were referred to, by the learned trial Court.

3. The factual position, as borne out from the

record, may be summed up, as under:

3.1. Plaintiffs have filed a suit for possession of land,

measuring 16 kanal 6 marlas, being 326/4444 share, out

of total land, measuring 222 kanal 4 marlas, comprised in

Kewat No. 1 min, Khatauni No. 1 min, bearing khasra No.

549, as entered in the jamabandi for the years 1955-56,

situated in Mohal Lal Singi, Tehsil and District Una, H.P.

(hereinafter referred to as 'the suit land'), on the ground

that the same is owned and possessed by the defendant,

alongwith other land, to the extent of her share.

3.2. The said relief has been sought on the ground

that the plaintiffs have purchased the land, vide registered 3 2025:HHC:837

sale deed, dated 28th December, 1981, for a sum of ₹

6,000/- from Sh. Jaspal Singh, son of Sh. Ajit Singh, son

of Sh. Jai Kishan, father of the defendant and mutation, in

this regard, is stated to be sanctioned vide mutation No.

1220, dated 27th June, 1982.

3.3. According to the plaintiffs, there was stipulation

in the sale deed that in case, there is any defect in the title

of the vendor, regarding the subject matter of the sale, in

that eventuality, the other land of the same value shall be

given to the vendees, in lieu of the land sold.

3.4. It is their case that during partition, the title of

vendor-Jaspal Singh, father of the defendant, was found

defective, as such, mutation No. 1220, dated 7 th June,

1982 was ordered to be reviewed by the Settlement

Collector, vide order, dated 23 rd December, 1998. Hence,

the relief of possession has been sought.

4. The said suit was contested by the defendant,

by taking the preliminary objections that the suit is not

maintainable; the plaintiffs have no locus standi to file the

present suit; the plaintiffs are estopped by their act,

conduct, deeds and acquiescence to the file the present

4 2025:HHC:837

suit; the plaintiffs have no legally enforceable cause of

action; and, that the plaintiffs have not approached the

Court with clean hands.

4.1. Admitting the fact, as a matter of record,

regarding the share of Jaspal Singh, Tek Chand and Vijay

Kumar, it has been denied that the estate of Jaspal Singh

has been succeeded by the defendant. The defendant has

also denied that the title of her father was defective. It has

also been denied that the suit land, as well as, the land,

which was subject matter of the sale deed, in favour of the

plaintiffs, is the same. Hence, a prayer has been made to

dismiss the suit.

5. Issues, in this case, were framed on 15 th

February, 2017. Thereafter, the parties to the lis were

directed to adduce the evidence.

6. After the closure of the evidence, when, the

matter was listed for arguments, an application, under

Order VI Rule 17 CPC has been filed, by the plaintiffs.

7. By way of the said application, the plaintiffs had

sought the indulgence of the learned trial Court to permit

them to amend their pleadings in the following manner:

5 2025:HHC:837

"That in the end of last line of the head note of the plaint after the words Tehsil and District Una HP as well as in the prayer para of the plaint, the following words/lines are to be added "by declaring the plaintiffs as owners thereof in lieu of sold land and as per covenant of sale deed dated 28.12.1981."

8. The amendment has also been sought on

account of typing mistake, as, according to the

plaintiffs/applicants, the date of sale deed has wrongly

been written and typed as '28.02.1981', instead of

'28.12.1981' in the second and eleventh line of para-7 of

the plaint.

9. The said amendment is stated to be essential

for the decision of the real controversy involved between

the parties. The proposed amendment is also stated to be

not causing any prejudice to the defendant, nor, according

to the plaintiffs/applicants, it will change the nature of the

suit.

10. This application has been contested by the

defendant/non-applicant, by taking the preliminary

objections that the application is not maintainable and the

same is liable to be dismissed, as, the trial has commenced

long back; the relief claimed is barred by limitation and the 6 2025:HHC:837

proposed amendment is not based upon any subsequent

development.

11. On merits, the application has been contested,

on the ground that by way of the proposed amendment, the

applicants want to take away the rights vested in the

defendant, with the passage of time, as, the relief of

declaration is required to be sought within three years from

the alleged cause of action.

12. According to the defendant/non-applicant, the

application for amendment has been moved, when, the

case was fixed for arguments and the plaintiffs/applicants

have felt that their suit is going to fall, on the ground.

Hence, a prayer has been made to dismiss the application.

13. The plaintiffs/applicants have filed rejoinder to

the reply, denying the preliminary objections, as well as,

the contents of the reply, by virtue of which, the

application has been contested.

14. The application has been dismissed by the

learned trial Court, vide the impugned order.

15. Against the said order, the present petition has

been filed, before this Court.

7 2025:HHC:837

16. The order, impugned herein, has been

challenged on the ground that the learned trial Court has

not understood the controversy involved, in this case, and

the application under Order VI Rule 17 CPC has simply

been dismissed, on the ground, that no justifiable and

cogent reason, for delay in moving the amendment

application, has been given by the applicants.

17. Another reason for dismissal of the application

has been mentioned in the order impugned herein that the

essential ingredients of Order VI Rule 17 CPC have not

been fulfilled, in this case, as the proposed amendment

was already in the knowledge of the applicants and if the

application is allowed, then, it will change the nature of the

dispute.

18. Admittedly, the application for amendment, has

been filed, when the case was fixed for arguments, before

the learned trial Court.

19. In this backdrop, the material question, which

arises for determination, before this Court, is whether, at

this stage, the application, under Order VI Rule 17 CPC

can be allowed, in view of the fact that the necessary 8 2025:HHC:837

ingredients, as per Order VI Rule 17 CPC, i.e. pleadings

with regard to due diligence, have not been pleaded.

20. In view of the decision of the Hon'ble Supreme

Court, in Life Insurance Corporation of India versus

Sanjeev Builders Private Limited and Another, reported

in 2022 SCC OnLine SC 1128, every case is to be seen,

according to the facts and circumstances of that case.

Relevant para 26 of the judgment, is reproduced, as under:

"26. But undoubtedly, every case and every application for amendment has to be tested in the applicable facts and circumstances of the case. As the proposed amendment of the pleadings amounts to only a different or an additional approach to the same facts, this Court has repeatedly laid down the principle that such an amendment would be allowed even after expiry of statutory period of limitation."

21. The document, which has been mentioned in

the proposed amendment, i.e. sale deed, dated 28 th

December, 1981, has already been produced and exhibited

as Ex. PW-1/A. Moreover, when, this document was

exhibited, no objection has been raised by the defendant.

As such, the document, upon which, the relief of

declaration is being sought, by amending the prayer

clause, as well as, amending/correcting the date of the sale 9 2025:HHC:837

deed, in the second and eleventh line of para 7 of the

plaint, to the considered opinion of this Court, does not

change the nature of the suit.

22. When, the plaintiffs have led the evidence to

prove the sale deed, upon which, they are basing their

claim, then, merely, on the ground of delay, the proposed

amendment cannot be disallowed, as, for making the

application, at a belated stage, the other party can be

compensated, by way of costs, as held by the Hon'ble

Supreme Court, in Chander Kanta Bansal versus

Rajinder Singh Anand, reported in (2008) 5 Supreme

Court Cases 117. Relevant paras-13 and 14 of the

judgment, are reproduced, as under:

"13. The entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the others case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases.

10 2025:HHC:837

14. Keeping the above broad principles in mind, let us ascertain whether the defendant has justiciable cause to file an application praying for amendment of a written statement for bringing an agreement dated 10.09.1982. We have already referred to the fact that the plaintiff had approached the court seeking a decree for mandatory injunction as early as on 1986. We also refer to the fact that within a short duration i.e. in 1986 itself, the defendant has filed a written statement. Absolutely, there is no whisper about the prior partition agreement dated 10.09.1982. No doubt, in the application for amendment, it was stated that her son who is a Chartered Accountant all along was looking after this suit and he died in the year 1998. It is also available from the very same application that apart from her first son, namely, Sunit Gupta, defendant has another son by name Navneet Agarwal. Admittedly, the son who looking after the suit was none else than a Chartered Accountant. In such circumstances, if the alleged agreement dated 10.09.1982 between the plaintiff and defendant was in existence nothing prevented her son, Chartered Accountant, to bring it to the notice of her counsel and refer it in the written statement filed in the year 1986. It is relevant to mention that in the reply, the plaintiff has specifically denied the same and asserted that the alleged agreement/partition deed dated 10.09.1982 is a forged document and based on the same, the proposed amendment cannot be allowed. It is also not in dispute and best known to both parties the suit which is of the year 1986 came to be taken up for trial only in 2004 and admittedly on the date of filing of the petition for amendment, the trial was on the verge of completion. It was brought to our notice that both sides have closed their evidence and completed their argument, but only at this stage the defendant filed the said application for amendment of her written statement."

11 2025:HHC:837

23. In this case, the plaintiffs/applicants are not

introducing any new case. They are simply seeking

amendment in the prayer clause and making the

correction, regarding the sale deed, which is already on the

record and has been exhibited.

24. Merely the fact that the application for

amendment has been filed after the statutory period of

time, the same cannot be made the sole ground to reject

the same, as, the document has already been exhibited,

only correction with regard to the execution of the sale

deed and relief, on the basis of the sale deed, i.e. relief of