IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 99 of 2011 Date of decision: 28.3.2011 Devender Kumar ….Petitioner. Versus Sunder Ram ….Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 For the petitioner: Mr. Virender Singh Chauhan, Advocate. For the respondent: None. Deepak Gupta, J. (Oral) 1. By means of this petition the petitioner has challenged the order dated 17.3.2011 passed by the learned Civil Judge (Jr. Division), Arki, dismissing the application filed by the plaintiff for amendment of the plaint. 2. Briefly stated the facts of the case are that the plaintiff filed a suit for declaration and specific performance of the possession. After evidence had been led and the case fixed for arguments, the plaintiff filed an application praying that he may be permitted to amend the plaint and insert the following words:- “The plaintiff has already performed his part of agreement who is also ready and willing to perform his part of agreement if found to be performed.” 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 3. This application was contested. The learned trial Court rejected the application solely on the ground that in the application for amendment of the plaint no reason was given why such a pleading was not made at the time of drafting of the plaint. 4. Shri Virender Singh Chauhan, learned counsel for the petitioner submits that the Court should not take a very technical view of the matter. He submits that an amendment can be allowed at any stage and that this amendment is only clarificatory in nature. 5. Order VI Rule 17 reads as follows:- Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties; Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trail.” 6. Proviso to Order VI Rule 17 was added vide the Code of Civil Procedure (Amendment) Act, 2002. The proviso which was inserted, makes it absolutely clear that the legislature has put an embargo on the powers of the Court to allow amendment after the trial has commenced. The embargo is that the Court must be satisfied that the 3 party who has applied for amendment could not plead the facts sought to be brought in by way of amendment despite due diligence at the time of filing of the original pleadings. 7. I have gone through the application for amendment which has been attached as Annexure P-4. There is not a whisper as to why such a pleading was not made at the time of drafting the original plaint. Once there is no explanation how can the Court come to the conclusion that there was due diligence. As such, there is no error in the order of the learned trial Court. The petition is, therefore, dismissed in limine. No order as to costs. 28th March, 2011 (Deepak Gupta) ™ Judge