IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 248 of 2004 Reserved on: 20.12.2010. Date of decision: 29.12.2010. Shakuntla Devi …Petitioner. Versus Hans Raj and others …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Shrawan Dogra, Advocate. For the respondent No.1: Mr. B.K.Malhotra, Advocate. Deepak Gupta, J. 1. The petitioner (here-in-after) referred to as the plaintiff has challenged the order of the learned trial Court dated 29.7.2004 whereby the application filed by the plaintiff for amendment of the plaint was rejected. 2. The plaintiff filed a suit in the trial Court wherein he alleged that the respondents (here-in-after referred to as the defendants) were threatening to raise construction on a portion of the suit land and therefore, sought a decree for injunction restraining the defendants from raising any construction. 3. It would be pertinent to mention that the plaintiff obtained an interim injunction order in his favour and by 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 means of this application the plaintiff wants to amend the suit and according to the averments made here-in it is alleged that the defendants forcibly encroached upon the land measuring 0-2-3 bighas on 7.11.1994 as per the report of the District Revenue Officer and consequently amendment was sought in the prayer clause. The defendants resisted the application on various grounds including the ground of delay and malafidies. It was also averred that the defendants had constructed their house much prior to the filing of the suit and therefore, at this belated stage the amendment should not be allowed. 4. The learned trial Court held that even as per the plaintiff the construction had been raised on 7.11.1994 whereas the suit was presented before the learned trial Court on 11.11.1994 thus the plaintiff knew about the encroachment prior to filing of the suit. The learned trial Court also held that issues had been framed in the suit on 23.11.1995. The parties led their evidence. The plaintiff examined a number of witnesses and it was only on 30.3.2002 that the application for amendment was filed and there was great delay in filing the application. According to the learned trial Court since trial had commenced he could not allow this application. As far as the second ground is concerned the order of the learned trial Court is not correct since the proviso to 3 Order 6 Rule 17 which lays down that no amendment in respect of fact which was known prior to the filing of the suit should be allowed after the trial has commenced unless the party seeking amendment shows that it has acted with due diligence, was incorporated only in the year 2002 and as held by this Court in various judgements this proviso will not be applicable in cases filed prior to 2002. 5. Having held so, the facts remains that the encroachment was allegedly made on 7.11.1994 and this fact was withheld from the Court when the suit was filed on 11.11.1994. There is no explanation why wrong facts were pleaded in the original plaint. 6. However, the main ground to reject the prayer of the petitioner is that in case such an amendment is allowed at this stage the respondents shall be severely prejudiced. It has been pointed out to me that as per the demarcation report of the District Revenue Officer, Mandi, no doubt it was found that the respondents have encroached upon 0-2-3 bighas of land of the plaintiff but in the very same report it was also found that the plaintiff had encroached upon some land of the defendants. The demarcation report is of the year 1996. More than 14 years have elapsed and in case the amendment application is allowed at this stage, whereas the plaintiff 4 will be able to seek possession of the land allegedly encroached upon by the defendants, the defendants would not be able to claim possession of the land which has been encroached upon by the plaintiff. The plaintiff cannot be put in a more advantageous position. 7. In view of the above discussion, the petition is dismissed. No order as to costs. 29th December, 2010 (Deepak Gupta) ™ Judge