Himachal Pradesh High Court

____________________________________________________ vs Bala Devi And Others on 21 May, 2025

      IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

                                    CMPMO No. 333 of 2023
                                     Decided on: 21.05.2025
____________________________________________________
Rubby Devi                                 ........... petitioner
                            Versus
Bala Devi and others
                                          ..........respondents
____________________________________________________
Coram:
Hon'ble Mr. Justice Bipin Chander Negi, Judge
Whether approved for reporting? 1

For the petitioner                     :      Mr.   Karan             Singh         Kanwar,
                                              Advocate.
For the respondents         Mr.        :
                                  Deepak     Kaushal, Sr.
                            Advocate, with Mr. Abhishek
                            Verma, Advocate.
____________________________________________________
Bipin Chander Negi, Judge (oral)

By way of the present petition, a challenge has been

laid to impugned order dated 12.5. 2023 (Annexure P-1) whereby

an application filed under Order 6 Rule 17 CPC on behalf of the

present petitioner/defendant No.3 has been rejected by the trial

Court.

2. Heard counsel for the parties Perused the pleadings

and documents appended with the petition.

3. The application filed seeking amendment in the

written statement by the petitioner/defendant No.3 had been filed

at the stage, when the matter was fixed for arguments.

4. The entire object of the amendment to Order 6 Rule

17 as introduced in 2002 is to stall filing of application for

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

amending a pleading subsequent to the commencement to trial,

to avoid surprises and that the parties had sufficient knowledge of

other's case. It also helps checking the delays in filing the

applications.

5. Amendment cannot be claimed as a matter of right.

The proviso to Order 6 Rule 17 virtually prevents an application

for amendment of pleadings from being allowed after the trial has

commenced. After the commencement of trial, an application for

amendment can only be allowed once the Court comes to the

conclusion that inspite of due diligence, the parties could not have

raised the matter before the commencement of the trial. In view of

the proviso to Order 6 Rule 17, the absolute discretion to allow

amendment, at any stage, therefore stands curtailed. In this

regard, a reference can be made to (2019) 4 SCC 332 titled as

M. Revanna vs. Anjanamma (dead) by legal representatives

and others.

6. Duly diligent efforts are a requirement for a party

seeking to use the adjudicatory mechanism to attain an

anticipated relief. An advocate representing someone must

engage in due diligence to determine that the representations

made are factually accurate and sufficient. The term "due

diligence" is specifically used in the Code so as to provide a test

for determining whether to exercise the discretion in situations of

requested amendment after the commencement of trial. The term

"due diligence" determines the scope of a party's constructive

knowledge, claim and is very critical to the outcome of the suit. In

this respect, a reference can be made to (2012) 2 SCC 300 titled

as J. Samuel and others vs. Gattu Mahesh and others.

7. In the application filled seeking amendment of the

written statement, it has been categorically averred on behalf of

the petitioner/defendant No.3 that the plea now sought to be

incorporated had been brought to the notice of the counsel at the

time of preparing of the written statement. However, due to

inadvertence, the same could not be incorporated. The written

statement is prepared based on the inputs given by the party.

The same is prepared by the counsel. Before filing in Court, the

same is read both by the counsels and the party concerned. Both

the counsels and the party must engage in due diligence to

determine that the representations made in the written statement

are factually accurate and sufficient.

8. In the case at hand, it is only after a protracted trial

after the filing of the written statement by defendant

No.3/petitioner that application for amendment was filed at the

stage of final hearing/arguments. Thereby showing a complete

lack of due diligence on the part of all concerned insofar as

petitioner/defendant No.3 is concerned.

9. The present petition has been filed under Article 227

of the Constitution of India. Article 227 of the Constitution reads

as under:-

"227. Power of superintendence over all courts

by the High Court.

(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction.

(2) Without prejudice to the generality of the foregoing provisions, the High Court may--

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein: Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision or any law for the time being in force, and shall require the previous approval of the Governor.

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces."

10. The scope of jurisdiction of High Court under Article

227 of the Constitution has been expounded by the Hon'ble

Supreme Court as under:

(i) In Sadhana Lodh vs. National Insurance Co. Ltd. & another, (2003)3 SCC 524, it has been held as under:-

"7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision."

(iii) In Garment Craft vs. Prakash Chand Goel, (2022)4 SCC 181, it has been held as under:-

"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute conclusion, for its own that of decision the on facts inferior court and or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice."

11. Thus, from the above stated exposition of law, it is

clear that this Court has a restricted and limited jurisdiction to

interfere under the correctional jurisdiction vested in it in terms of

Article 227 of the Constitution of India, except to set right a grave

dereliction of duty or flagrant abuse or violation of fundamental

principle of law or justice.

12. In the case at hand, I am of the considered view that

no ground is made out in the present petition to invoking the

jurisdiction of this Court under Article 227 of the Constitution of

India.

13. In view of the aforesaid, I see no merit in the

impugned order passed by the learned Trial Court dated