IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No.237 of 2011 Date of decision: 29.9.2011. ------------------------------------------------- Vinod Kumar & Ors. Petitioners. Versus Prem Lal & Ors. Respondents Coram: The Hon’ble Mr. Justice V.K. Ahuja, J. Whether approved for reporting1? No For the petitioners: Mr. B.S. Chauhan, Advocate. For respondent No.1: Mr.Bhupender Gupta,Senior Advocate with Miss Charu Gupta, Advocate. Justice V.K.Ahuja (Oral). The petitioners have filed the present petition under Article 227 of the Constitution of India against the order dated 27.6.2011, passed by the learned Civil Judge(Jr. Division), Court No.2, Ghumarwin vide which an application filed by the petitioner under Order 6 Rule 17 C.P.C. for amendment of the plaint was dismissed. 2. A notice of the petition was issued to the respondent. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. Brief facts of the case are that the suit for declaration was filed by the petitioners, as plaintiffs, (hereinafter referred to as the petitioners) challenging the Will executed by one Ram Krishan in favour of the defendants. The plea in regard to the validity of the Will was taken by the plaintiffs in the plaint and at a subsequent stage, application under Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. Order 6, Rule 17 CPC was filed by the plaintiffs alleging therein that they could not take the plea earlier that the Will does not bear the signatures of the deceased and as such the signatures deserves to be compared by the Court. In the absence of the specific plea having been taken in regard to the question as to whether the Will bears the signatures of the deceased or not, this point could not have been considered by the Court in the application for amendment of the plaint filed by the plaintiffs. This fact has been strongly opposed by the learned counsel for respondent No.1 on the ground that he has not alleged that in spite of due diligence that he could not file the application earlier and as such the application deserves to be dismissed having been filed after commencement of the trial. He has placed reliance on the decision relied upon by the learned trial Court, in case titled Kishori Lal vs. Krishan Lal & others, 2011(1) Him.L.R.30, wherein it was observed that the Court shall not allow the amendment unless it comes to the conclusion that despite due diligence, the parties could not have raised the matter before the commencement of the trial. On the other hand, the learned counsel for the petitioners has relied upon the decision of the Hon’ble Supreme Court in Surender Kumar Sharma vs. Makhan Singh (2009)10 S.C.C. 626. The observations made in para 5 of the judgment are relevant and are being reproduced below:- “5. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and latches in making the application for amendment cannot be a ground to refuse the amendment.” 5. It is clear from the perusal of the judgment that the application for amendment can be filed even belatedly and even the case in which question of delay is there, the same can be considered and the application can be allowed on payment of cost. There is nothing that this plea cannot be allowed to be taken on the aforesaid decision until and unless the plaintiffs alleges that they could not take the plea despite due diligence. The observations of the Apex Court are clear which gives wide powers to the Court to allow either the party to alter or amend the pleadings. Due to inadvertence, this plea could not be taken earlier even if the trial has begun, has no bar in allowing the application as held by the Apex Court. 6. In view of the above discussion, the petition deserves to be allowed for amendment of the plaint. It has been pointed out by the learned counsel for the respondent that an earlier application filed by the plaintiff for comparison under Section 73 of Indian Evidence Act, was not allowed by this Court and, therefore, the plaintiffs should not be permitted to lead evidence in support of the amendment by seeking Expert opinion, since the said order has become final. The learned counsel for the petitioners made a statement at the Bar that he will not press the prayer for sending the disputed signatures for comparison by the Expert with admitted signatures. However, he will make a prayer only for comparison by the Court under Section 73 of the Indian Evidence Act. The application is allowed to this extent that the amendment shall be allowed by the learned trial Court subject to payment of Rs.1500/- as costs, as earlier also two applications were filed for amendment. 7. The parties shall appear before the learned trial Court and the learned trial Court shall permit the amendment in the plaint to be taken on record and an opportunity shall be given to the defendants to file amended written statement, if any, and then the Court shall proceed further in the case. 8. Learned counsel for the parties are directed to appear before the learned trial Court on 1st November, 2011. 9. In view of the above, the petition is allowed and disposed of accordingly, so also the pending miscellaneous application(s), if any. A copy of this order alongwith the record be sent to the learned trial Court for compliance. September 29, 2011 ( V.K. Ahuja ) (mlg) Judge