-1- IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 230 of 2011 Reserved on: 28.07.2011 Decided on: 08.08.2011 Krishan Dutt & others …Petitioners. Versus State of H.P. & others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioners: Mr. Rajiv Jiwan, Advocate. For the respondents: Mr. Vivek Singh Thakur, Additional Advocate General. Deepak Gupta, J. The petitioners (hereinafter referred to as ‘the plaintiffs’) by means of this petition under Article 227 of the Constitution of India have challenged the order dated 28.4.2011 whereby the learned lower Appellate Court dismissed the application filed by the plaintiffs for amendment of the plaint. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -2- 2. Briefly stated, the facts of the case are that the plaintiffs filed a suit against the State of Himachal Pradesh (hereinafter referred to as ‘the defendants’) for declaration to the effect that they are entitled to claim compensation from the defendants for the value of the land measuring 3-10 bighas situated in village Ghumarwin, District Bilaspur. According to the plaintiffs, they were owners of the suit land but the State of Himachal Pradesh had illegally taken possession of the suit land and constructed a school there. 3. The stand of the State was that this land had been relinquished by the plaintiffs No. 1 and 2 and predecessors in interest of the plaintiffs No. 3 to 8 in favour of the then Ruler of the Bilaspur State in the interest of the public at large for construction of school and other buildings. Thereafter, the land vested in the State of Himachal Pradesh and the State was the owner in possession of this land. 4. The learned trial court came to the conclusion that the plaintiffs are the owners of the land, but held that no assurance was ever held out to them that they would be paid compensation and further came to the conclusion that the suit land was transferred to the Raja of Bilaspur State before 1950 and is in possession of the defendants since long time. He, therefore, held that such a suit was not maintainable and the plaintiffs should have filed a suit for possession. The learned trial Court dismissed the suit on 30th March, 2009. -3- 5. Thereafter, the plaintiffs filed an appeal and one year later, i.e. in July 2010, filed an application for amendment of the plaint. By means of this application, they basically want to amend the suit to raise an alternative relief of possession. This application was dismissed by the learned lower Appellate Court mainly on the ground that since the suit had proceeded beyond the trial stage, the amendment cannot be allowed in view of the proviso to Order 6 Rule 17 CPC. 6. As far as this aspect of the matter is concerned, in my opinion ,the learned lower Appellate Court has erred. The proviso to Order 6 Rule 17 CPC was incorporated in the Code of Civil Procedure vide Code of Civil Procedure (Amendment) Act, 2002. Section 16-B of the Code of Civil Procedure (Amendment) Act, 2002 clearly lays down that the amended provisions of Order 6 Rules 5, 15, 17 and 18 shall not apply in respect of any pleadings filed before commencement of Section 16 of the Act. Therefore, this amendment was to come into force with prospective effects and could not apply to suits which had been filed earlier. 7. Having held so, I find no merit in the petition. Even under the un-amended provisions, the party seeking amendment was required to show that it had acted with due diligence. No Court can help an indolent litigant. In this case, there is no explanation worth the name as to why the relief of possession was not sought when the suit was filed in the year 1997. No -4- such amendment can be allowed after thirteen years. Normally, this Court does not go into the merits of the amendments sought, but in the present case, ex facie, the relief sought to be claimed cannot be granted to the plaintiffs. It virtually stands admitted that the plaintiff has been out of possession of the suit land for more than six decades. A school stands constructed thereupon. More than twelve years have elapsed since the institution of the suit and the time when the State claimed ownership. Therefore, it is obvious that allowing the amendment would be an exercise in futility since no relief can be granted. 8. With these observations, the petition is accordingly rejected. No order as to costs. (Deepak Gupta) Judge August 08, 2011 (rajni)