IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.R. No.: 22 of 2011. Reserved on: 04.04.2012. Decided on: 20.04.2012. ____________________________________________________________ Shri Shetu Ram son of Shri Thalli son of Shri Shehaji, resident of village Boithar, Phati Manjadesh, Kothi Naraingarh, Tehsil Ani, District Kullu, Himachal Pradesh. … Petitioner. Versus 1. Shri Roop Lal son of Shri Johari, resident of village Dhamni, at present MHW in PHC Gadadim, Phati Manjadesh, Mothi Naraingarh, Tehsil Ani, District Kullu, Himachal Pradesh. 2. Shri Mohan Lal son of Shri Johari, resident of village Dohgi, Phati Manjadesh, Kothi Naraingarh, Tehsil Ani, District Kullu, Himachal Pradesh. 3. Shri Amar Chand son of Shri Johari, resident of village Damni at present MHW in PHC Manali, Tehsil Manali, Dikstrict Kullu, Himachal Pradesh. 4. Shri Tabe Ram son of Shri Lachhi Ram, resident of village Chalaun, Tehsil Ani, District Kullu, Himachal Pradesh (Legal heir of deceased Lachhi Ram son of Shri Johari, resident of village Chaloun, Tehsil Ani, District Kullu, Himachal Pradesh). … Respondents. Revision Petition under Section 115 of the Code of Civil Procedure. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Balwant Singh, Advocate. For the Respondents : Mr. Romesh Verma, Advocate. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - Justice Rajiv Sharma, Judge: Petitioner (hereinafter referred to as “the plaintiff” for convenience sake) instituted a suit in the Court of Sub Judge 1st Class, Ani for declaration and consequential relief. According to the plaintiff, one Shri Shehaji son of Diloo, resident of village Chalohan was owner in possession of land measuring 10-11 bighas contained in Khata/Khatauni No.507 min/653, Khasra Nos.6003, 6026 and 6028 as per jamabandi for the year 1956-57 of Phati Manjhadesh, Kothi Naraingarh, Tehsil Ani, District Kullu. Shri Shehaji vide mutation No.955, dated 17.8.1958 mortgaged this land with possession in favour of his son Shri Thali and the possession of the same was also delivered to Shri Thali. After the death of Shri Shehaji, his estate was inherited by his sons Balu, Thali and Lachhi to the extent of 3/4th share and Smt. Brikmu daughter of Shri Shehaji to the extent of 1/4th share vide mutation No.1692. Out of Khasra No.6003, measuring 4-8-0 bighas, the land measuring 1-6-0 bighas was acquired in Ani-Chovai road and the remaining land measuring 3-2-0 bighas was assigned Khasra No.8194/6003. Vide mutation No.3557 of partition, the land measuring 3-19-0 bighas contained - 3 - in Khasra No.6026 had fallen into the share of Shri Thali and land measuring 3-2-0 bighas contained in Khasra No.8194/6003 had fallen into the share of Shri Balu and Shri Lachhi son of Shri Shehaji, whereas land measuring 2-4-0 bighas contained in Khasra No.6028 had fallen into the share of Smt. Brikmu. After the death of Shri Thali, his estate including the mortgage rights in the suit land was inherited by the plaintiff being son. He was in possession of the suit land as mortgagee since 17.8.1958. Since the respondents/ defendants (hereinafter referred to as “the defendants” for convenience sake) or their predecessor in interest have not redeemed the mortgage, the right of redemption of the mortgage, which was available within the period of 30 years from the date of creating the mortgage has been foreclosed. In these circumstances, the plaintiffs have acquired title thereon and have already become absolute owner of the suit land and defendants have got no right, title or interest over the suit land. The revenue entries showing the defendants still as owners of the suit land are not correct and as such, the plaintiffs are not bound by the same. The defendants have been requested to admit the claim of - 4 - the plaintiffs and to get the revenue entries changed. The plaintiff has prayed for the following reliefs:- “It is, therefore, prayed that it may be declared that the plaintiffs have been in possession of the suit land since 17.8.1958, as mortgagees and as such on account of the failure of the defendants or their predecessor in interest to pay the mortgage debt, to redeem the mortgage and to get the possession of the suit land within the period of 30 years from the date of creating the mortgage and as such the right of redemption of the mortgage has been foreclosed and consequently, the plaintiffs have become owners in possession of the suit land and the defendants have extinguished all their rights, title, interest over the suit land and have got no right over the suit land and as such the plaintiffs are not bound by the wrong revenue entries showing the defendants as owners of the suit land and thus the plaintiffs are entitled to be recorded as owners in possession of the suit land, with consequential relief of injunction, restraining the defendants themselves and through their agents and servants from claiming any right, title or interest over the suit land and from interfering in the ownership and possession of the plaintiffs and from dispossessing the ousting the plaintiffs from the suit land and a decree to this effect together with costs of the suit may be passed in favour of the plaintiffs and against the defendants. Any other - 5 - relief to which the plaintiffs may be found entitle, the same may also be awarded in favour of the plaintiffs and against the defendants in the interest of justice.” 2. Written statement was filed by the defendants, refuting the claim of the plaintiff. 3. The learned Civil Judge decreed the suit on 16.12.2003. An appeal was preferred by the defendants bearing Civil Appeal No.5 of 2004. An application under Order 6 Rule 17 of the Code of Civil Procedure was filed by the defendants. Reply was filed by the plaintiff to the same. The learned District Judge vide judgment dated 13.1.2005 allowed the application for amendment of written statement and remanded the suit to the learned Civil Judge, Junior Division by setting aside the judgment and decree of the learned trial Court. The plaintiff preferred F.A.O. No.39 of 2005 against order dated 13.1.2005 passed by the learned District Judge. This Court confirmed the said order whereby application under Order 6 Rule 17 of the Code of Civil Procedure was allowed. However, this Court held that whole-sale remand was not desirable. The Court had ordered that the replication was required to be filed to the amended written statement by the plaintiff. Thereafter, fresh issues after the remand were to be framed by the - 6 - learned trial Court. The learned trail Court took on record the replication filed by the plaintiff to the amended written statement. The learned trial Court framed the additional issue on 7.12.2009. Thereafter the learned trial Court decided the additional issue on 6.1.2010 by holding that the defendants were entitled to the benefit of Section 3 of the H.P. Relief of Agriculture Indebtedness Act, 1976. The defendants filed cross- objections on 11.1.2010 against order dated 6.1.2010 and the plaintiffs also filed cross-objections on 18.2.2010. Thereafter, the case was fixed for arguments four times. 4. The plaintiff moved an application on 14.5.2010 under Order 6 Rule 17 of the Code of Civil Procedure seeking substitution of para-4 and also for molding the relief. The plaintiff has prayed for substitution of para-4 as sunder:- “That the plaintiffs are in possession of suit land since 22.6.1958 on which date the suit land was mortgaged with possession for sum of Rs.500/- and that too for 5 years and on expiry of such period of 5 years the plaintiff and his predecessor become full owner in possession as defendants and their predecessor failed to redeem the suit property within thirty years from 22.6.1963 and after KHANGI TAKSEEM effected on - 7 - 14.01.1976 the plaintiff and his predecessor in interest have been claiming their possession over Khasra No.6028 and 8194/6003 as owner by way of adverse possession as the defendants and their predecessor in interest were not allowed by the plaintiff to take possession of such Khasra Nos. and therefore, plaintiff’s possession over these Khasra Nos. was hostile to the interest of the defendants and the defendants having failed to put into operation the provisions of H.P. Relief of Agriculture Indebtedness Act, 1976 right from 13.11.1975 till today has lost their right to the benefit of such provisions since plaintiffs have become owner of such land by way of adverse possession”. 5. Prayer clause was also sought to be substituted in the following manner:- “It is, therefore, prayed that the plaintiff has become absolute owner in possession of Khasra No.6026 measuring 3- 19 bighas Mauza Naraingarh, Patti Manza desh by way of KHANGI TAKSEEM effected or taken place on 14.01.1976 and mutated on 14.10.1977 vide mutation No.3557 and remaining 2 Khasra Nos. that is 8194/6003 measuring 2-18 bighas and 6028 measuring 2-4 bighas situated in Mauza Narayan Garh, Patti Manja Desh, the plaintiff has become owner in possession as the defendants failed to redeem such property within 30 years from 22.06.1963 in alternative the plaintiffs - 8 - have become owner in possession of these 2 Khasra Nos. by way of Adverse Possession since 14.01.1976 as the defendants were not able to oust the plaintiffs or take possession of above said two Khasra Nos. from the plaintiffs either by putting in to operation the provisions of H.P. Relief of Agriculture Indebtedness Act, 1976 or by paying the mortgaged amount and in consequence thereof the defendants may kindly be restrained by appropriate decree of injunction from causing any sort of interference into the peaceful possession of the plaintiff over the suit property mentioned above. Any other relief the court deems just and proper may kindly be allowed in favour of plaintiff and against the defendants and the decree be passed with heavy cost in the interest of justice and fair play.” 6. The application was accompanied with amended plaint. Defendants filed detailed reply to the application preferred by plaintiff under Order 6 Rule 17 of the Code of Civil Procedure. The learned District Judge, Kinnaur at Rampur dismissed the application on 15.1.2011. 7. Mr. Balwant Singh Thakur, learned counsel for the plaintiff has strenuously argued that the learned District Judge has failed to exercise the jurisdiction - 9 - vested in him. According to him, the plaintiff has made out a case for amendment of plaint, more particularly, after the findings were recorded by the learned Civil Judge on the additional issue framed, on 6.1.2010. 8. Mr. Romesh Verma, learned counsel for the defendants has vehemently argued that the application under Order 6 Rule 17 of the Code has been filed to delay the proceedings. He then argued that the matter was fixed for arguments four times and the cross objections were filed by the plaintiffs on 18.2.2010. He has also argued that the plea raised by the plaintiff is mutually destructive. According to him, once the plaintiff has taken the plea that he is mortgagee, he is precluded from taking the plea of adverse possession. He lastly contended that the plea of adverse possession was always available to the plaintiff from the very beginning. 9. I have heard learned counsel for the parties and gone through the pleadings. 10. Plaintiff, Shri Shetu Ram has filed the suit alongwith one Smt. Lachhi. Smt. Lachhi Devi has died. The suit was filed, as noticed above, for declaration with consequential relief of injunction against the defendants. According to the plaintiffs, they were in - 10 - possession of the suit land since 18.7.1958 as mortgagees. Since the defendants or their predecessor in interest has failed to redeem the mortgage within 30 years from the date of creation of mortgage, their right of redemption of the mortgage stood foreclosed and consequently, they have become owners in possession of the suit land. The learned trial Court has returned the finding on additional issue framed on 7.12.2009, on 6.1.2010. Defendants have filed cross-objections on 11.1.2010 and the plaintiffs have also filed cross- objections on 18.2.010. The matter was thereafter listed four times for arguments. The application has been filed at a very belated stage. The plaintiff has not satisfied this Court why the application under Order 6 Rule 17 of the Code of Civil Procedure was not filed initially when the cross-objections were filed on 18.2.2010. The case of the plaintiff was that since the defendants have failed to redeem the mortgage, they have become owners in possession of the suit land. Now by way of amendment, the plaintiff is going to take the additional plea of adverse possession. This plea is mutually contrary and self destructive. The suit was filed on 19.8.1997 and the same till date has not been decided. The application lacks bona fides. The present - 11 - application filed under Order 6 Rule 17 of the Code of Civil Procedure is not necessary for the purpose of determining the real question in controversy between the parties. The plaintiff has not exercised due diligence and the findings recorded by the learned District Judge that the same has been filed to prolong the proceedings, are correct. 11. The case set up by the plaintiff was that the entire suit land including Khasra No.6026 has been mortgaged by Shri Shehaji in favour of his father Shri Thali and the possession was also delivered to him. Shri Shehaji, mortgagee has died and his estate was inherited by his sons Balu, Thali and Lachhi and Smt. Brikmu daughter of Shri Shehaji. Their further case is that even in the Khangi partition, although Khasra Nos.6028 and 8194/6003 were allotted to the predecessor in interest of the defendants, but the possession remained with Tahli and after his death with the plaintiff. In view of this, it is reiterated that the plaintiff cannot be permitted to take the plea of adverse possession. 12. The case set up by the defendants in their written statement is that the mortgage was simple and not with possession. It is also averred in the written - 12 - statement that on 20.11.1977 the mortgage money has been paid to Thali in the presence of witnesses, who has affixed the thumb impression on the document. Thus, the stand of the defendant through out was that the mortgage was simple and the same has been redeemed by paying the mortgage money to Thali on 20.11.1977. Thus in the year 1977 when the defendant have asserted their claim over the suit land, it was open to the plaintiff to take the plea of adverse possession at the initial stage. The plaintiff has miserably failed to establish why despite due diligence he has now tried to raise the plea of adverse possession and why the same could not be taken earlier. 13. The Apex Court in Chander Kanta Bansal Vs. Rajinder Singh Anand, (2008) 5 Supreme Court Cases 117 has explained the term “due diligence” as under: “16. The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (Eighth Edition), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. - 13 - "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs. 14. Their Lordships of the Hon’ble Supreme Court in Revajeetu Builders and Developers Vs. Narayanaswamy and sons and others, (2009) 10 Supreme Court Cases 84 have laid down the following principles which ought to be taken into consideration while allowing or rejecting the application for amendment: “58. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts' discretion in grant or refusal of the amendment. NO PREJUDICE OR INJUSTICE TO OTHER PARTY: 59. The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side. The - 14 - Courts have very wide discretion in the matter of amendment of pleadings but court's powers must be exercised judiciously and with great care. 60. In Ganga Bai's case (supra), this Court has rightly observed: "The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court." COSTS: 61. The Courts have consistently laid down that for unnecessary delay and inconvenience, the opposite party must be compensated with costs. The imposition of costs is an important judicial exercise particularly when the courts deal with the cases of amendment. The costs cannot and should not be imposed arbitrarily. In our view, the following parameters must be taken into consideration while imposing the costs. These factors are illustrative in nature and not exhaustive. (i) At what stage the amendment was sought? (ii) While imposing the costs, it should be taken into consideration whether the amendment has been sought at a pre-trial or post-trial stage; (iii)The financial benefit derived by one party at the cost of other party should be properly calculated in terms of money and the costs be awarded accordingly. (iv) The imposition of costs should not be symbolic but realistic; (v) The delay and inconvenience caused to the opposite side must be clearly evaluated in terms of additional and extra court hearings compelling the opposite party to bear the extra costs. (vi) In case of appeal to higher courts, the victim of amendment is compelled to bear considerable additional costs. All - 15 - these aspects must be carefully taken into consideration while awarding the costs. 62. The purpose of imposing costs is to: (a) Discourage malafide amendments designed to delay the legal proceedings; (b) Compensate the other party for the de- lay and the inconvenience caused; (c) Compensate the other party for avoid- able expenses on the litigation which had to be incurred by opposite party for opposing the amendment; and (d) To send a clear message that the par- ties have to be careful while drafting the original pleadings. FACTORS TO BE TAKEN INTO CONSIDERATION WHILE DEALING WITH APPLICATIONS FOR AMENDMENTS: 63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. - 16 - These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive. 64. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments. 15. There is no illegality or procedural irregularity in order dated 15.1.2011 passed by the learned District Judge, Kinnaur at Rampur in Civil Miscellaneous Petition No.38 of 2011 in Civil Appeal No.5-R/13 of 2004. 16. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any. No costs. (Justice Rajiv Sharma), Judge. April 20, 2012. (sck).