IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 95 of 2008. Date of Decision: 29.5.2008 Gurdev Singh ..Petitioner Versus. Manohar Lal & anr. .. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? For the Petitioner(s): Mr. Ajay Sharma, Advocate. For the Respondent(s): Mr. N.K.Thakur, Advocate with Mr.Romesh Sharma, Advocate. Deepak Gupta, J. (Oral). This petition is directed against the order dated 23.2.2008 whereby the learned Civil Judge (Jr. Div). Court No.1, Amb, District Una, has rejected the application filed by the petitioner, hereinafter referred to as the plaintiff, for permission to amend the plaint. Briefly stated the facts of the case are that the plaintiff filed a suit against the respondents, hereinafter referred to as the defendants, claiming that the defendants have no right to raise construction or change - 2 - the nature of the land comprised in khewat No. 183, khatauni No. 192, khasra Nos. 1305, 1306,1307, 1308 and 1309 in village Pratapnagar, Amb District Una, HP. Along with the suit an application was also filed praying that the defendants be restrained from raising any construction on the suit land. On 21.6.2004, the learned trial Court passed an ad- interim order restraining the defendants from raising any construction or interfering in the suit land or damaging the fence in any manner. This order was continued and culminated in the order dated 3.11.2004, whereby the parties were directed to maintain status quo with regard to the boundaries of the land till final decision of the main case. It would be pertinent to mention that in between on 19th July, 2004, the plaintiff filed an application under Order 39 rule 7 CPC praying that a Local Commissioner be appointed. The plaintiff claimed that despite service of the stay order, the defendants were raising construction and a Local Commissioner be appointed to ascertain this fact. This application was rejected on the ground that a party cannot be allowed to collect evidence by using the machinery of the Court. This order was passed on 3.11.2004. Issues were also framed on 3.11.2004. - 3 - The suit was then listed for evidence of the plaintiff on 21.3.2005. Two PWs were examined on the said date and the matter was adjourned to 3.5.2005. On this date, no evidence was present and adjournment was sought and the matter was adjourned to 7.9.2005. Again adjournment was sought and the matter was adjourned to 7.10.2005 for plaintiff’s evidence. On 7.10.2005, an application under Order 6 rule 17 CPC was filed for amendment of the plaint. This application was rejected by the trial Court only on the ground that the construction was raised by the defendants in August, 2004 and from August, 2004 till 7th October, 2005, the plaintiff took no steps to amend the plaint and, therefore, since he had not acted with due diligence, the amendment cannot be allowed. The rules of procedure are the handmaiden of justice meant to advance the cause of justice. These rules should not be interpreted in such a manner so as to thwart the cause of justice. No doubt, the proviso to Order 6 rule 17 CPC provides that no court can permit an amendment after the trial has commenced unless it is shown that the party seeking amendment has acted with due diligence. In the present case, in July, 2004 itself, the plaintiff - 4 - informed his counsel that the defendants despite stay order, was raising the construction. The counsel thought it appropriate to file an application under Order 39 rule 7 CPC. Parties are not well-versed in the intricacies of law. It is for the lawyer to advise and to decide what action should be taken in the matter. The counsel thought that probably the party’s interest would be served if an application is filed under order 39 rule 7 and he did not apply for amendment even after it was brought to his notice by the plaintiff that the defendants have raised construction. It is a well settled principle of law that no party should suffer for the negligence of the lawyer. In the present case, there was no lack of diligence on the part of the plaintiff. As soon as the plaintiff came to know that the defendants were raising construction, he informed his counsel. If the counsel did not take any steps to get the plaint amended, the party should suffer. Therefore, I am of the considered opinion that the learned trial court took a very technical view in holding that the party had not been diligent in pursuing the matter. The plaintiff had taken all reasonable care and acted in good faith and - 5 - was in touch with his counsel. If the counsel did not take an appropriate action, the plaintiff should not suffer. No doubt, there has been delay in the trial by the plaintiff not filing the application for amendment immediately. However, the defendants could have been compensated for the delay. Another well settled principle of law is that in every case, where the amendment is necessary to decide the matter in controversy, the same should be allowed. Keeping in view the aforesaid circumstances, the order of the learned trial Court is set aside and the plaintiff is allowed to amend his plaint subject to payment of Rs.1500/- as costs. The costs shall be paid before the trial Court on 27th June, 2008 on which date the parties shall appear before the learned trial Court. The Registry is directed to ensure that record of the trial Court is sent so as to reach there well before the date fixed. May 29, 2008. ( Deepak Gupta ), J. s.