IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 216 of 2009 Judgment reserved on : 7.9.2009 Date of decision : 10.9.2009 Sohan Lal …Petitioner Versus Mohan Lal and others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioner : Mr. K.D.Sood, Advocate. For the Respondents : Mr. Romesh Verma, Advocate. Kuldip Singh, Judge This is a petition under Article 227 of the Constitution of India for quashing and setting aside the order dated 10.2.2009 passed by the learned Civil Judge (Senior Division), Hamirpur in Civil Suit No. 107 of 2005 on an application of the petitioner under Order 6 Rule 17, Section 151 and Order 1 Rule 10 C.P.C. for amendment of plaint. 2. The brief facts of the case are that the petitioner had filed a suit for declaration and injunction against the respondents from interfering with his possession. He has also challenged the sale deed executed by Rattan Chand in favour of Mohan Lal. The suit was 1 Whether reporters of Local Papers may be allowed to see the Judgment ?. yes 2 contested by respondents. It is the case of the petitioner that during the pendency of the suit when the official witnesses were examined it came to the notice of the petitioner that the land was allotted to Rattan Chand when the same was in possession of petitioner. He was not dispossessed from the land and therefore, allotment in favour of Rattan Chand is null and void and not binding on the petitioner. 3. The petitioner has also projected the case that an objection had been taken in the written statement that suit was barred in absence of State. The petitioner in these circumstances filed an application for amendment of plaint and impleading the State as defendant. The petitioner by way of proposed amendment wanted to add para 6A in the original plaint and also intended to implead the State as defendant No.3. 4. The application was contested by the respondents and the learned Civil Judge (Senior Division), Hamirpur dismissed the application on 10.2.2009. The petitioner has assailed the impugned order on the grounds that the learned Civil Judge (Senior Division),Hamirpur has not properly applied the principles for amendment of the plaint. The case of the petitioner for impleading the State of Himachal Pradesh as defendant No.3 has not been considered in the impugned order. The plea of adverse possession was already taken in the plaint and the proposed amendment was in the nature of explanation. 5. The learned counsel for the respondents has submitted that the petitioner was not diligent in moving the application for 3 amendment. According to him, as per the petitioner the proposed amendment is explanatory but in view of amended Order 6 Rule 17 C.P.C. the petitioner has not shown due diligence for amendment of the plaint. The petitioner is not entitled to amendment of plaint as proposed by him. The State of Himachal Pradesh cannot be impleaded as defendant No.3. 6. Heard and perused the record. The learned counsel for the petitioner has submitted that the petitioner had filed joint application for amendment of the plaint and for impleading the State of Himachal Pradesh as defendant No.3. The petitioner by way of new para 6A intended to carry out amendment in the plaint. The petitioner in para 6A has pleaded that he or his predecessor was never dispossessed from the suit land before allotting the land to Rattan Chand and as such the possession of the petitioner over the suit property has been coming openly, peacefully, continuously and adversely since from the year 1910-11 against the State of Himachal Pradesh which has matured into title of ownership. The allotment of suit land in favour of deceased Rattan Chand vide mutation No.993 dated 20.8.1983 is null and void and not binding on petitioner. 7. In original para 5 of the plaint, the petitioner has taken the plea that his possession over the property is quite old one since the time of his ancestors but qua the present defendants who are father and son respectively is adverse since 20.8.1982 and the same has now matured into ownership because the same was continuous, hostile and was in the knowledge of defendants. In proposed para 6A 4 in substance the petitioner intends to take the plea of adverse possession which he has already taken in original para 5 of the plaint and on the same grounds he intends to add the State of Himachal Pradesh as defendant No.3. In para 7 of the written statement objection with respect to necessary party has been taken by the respondents by pleading that Ram Saran is a necessary party. In para 7 of the replication, the petitioner has denied the objection of necessary party which has been taken by respondents in their written statement. 8. Order 6 Rule 17 C.P.C. provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings, but proviso to Rule 17 provides that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that inspite of due diligence, the party could not have raised the amendment before the commencement of the trial. In Vidyabai Vs. Padmalatha AIR 2009 SC 1433, the Supreme Court in para 11 of the report has observed as follows:- “The ratio in Kailash Vs. Nanhku (2005) 4 SCC 480 was reiterated stating that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence.” 9. In Prithvi Raj and another Vs. Gopal Singh and others 2005 (2) S.L.J. 958, it has been held that by introduction of proviso in Rule 17 of Order 6, the power of the Court to permit amendments in the pleadings after the trial has commenced has now been 5 circumscribed and limited only to such situations where the Court comes to a conclusion that inspite of due diligence by party asking for amendment could not have raised the matter before the commencement of the trial. 10. The suit was filed on 7.7.2005. The amendment application was prepared on 23.12.2008. I have gone through the amendment application, there is no averment in the amendment application that despite due diligence the petitioner could not plead the proposed amendment in the original plaint. It has been submitted on behalf of the respondents that already eight witnesses of the petitioner have been examined and thereafter, the application for amendment of the plaint was filed. The amendment application of the petitioner cannot be allowed for want of necessary averments in the application as per proviso to Rule 17 of Order 6 C.P.C. The prayer for impleadment of the State of Himachal Pradesh as defendant No.3 is based only on the fact that the petitioner by way of proposed amendment intended to take the plea of adverse possession against the State. The petitioner has not made out the case for amendment as projected, therefore, the petitioner is also not entitled to implead the State of Himachal Pradesh as defendant No.3 in the suit. The petitioner has failed to make out any case for interference. There is no merit in the petition which is accordingly dismissed with no order as to costs. ( Kuldip Singh ), September 10, 2009. Judge. (GR)