IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 167 of 2008. Date of Decision: 20.6.2008 ________________________________________________________________ Ramesh Chand ….. Petitioner Versus Amar Singh … Respondent. ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? For the Petitioner : Mr. Romesh Verma, Advocate. For the Respondent(s) : ________________________________________________________________ Deepak Gupta, J (Oral). This petition is directed against the order of the learned Civil Judge (Jr. Div), Arki, District Solan, HP, dated 5.5.2008, rejecting the application filed by the petitioner (hereinafter referred to as the defendant) seeking leave to amend the written statement. Briefly stated the facts of the case are that the respondent (hereinafter referred to as the plaintiff) filed a suit for possession by way of redemption of mortgage of the suit land. This suit was contested and according to the defendant, the plaintiff had executed an agreement - 2 - to sell whereby he had agreed to sell the suit land to the defendant within 6 months of the agreement. The defendant in his written statement took up a specific plea that he would also be filing a separate suit for specific performance of the said contract. The suit was contested. Parties led evidence and the case was ripe for arguments. At this stage an application for amendment was filed wherein a prayer was made seeking to raise a plea that the defendant is in possession of the suit land in terms of the agreement to sell and therefore, his possession should be protected under Section 53(A) of the Transfer of Properties Act. The learned trial Court rejected this application solely on the ground that the applicant has neither pleaded nor shown any reason why these facts were not pleaded when the original written statement was filed. Order VI rule 17 CPC reads as follows:- “17. Amendment of pleadings.— The Court may at any stage of the proceedings allow either party o 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 question in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court conies to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. - 3 - The proviso to Order VI Rule 17 CPC is couched in mandatory language. It provides that the Court shall not allow any application for amendment unless it is convinced that this matter could not have been raised earlier despite due diligence. There is no averment in the application filed for amendment giving any reason why this plea could not be taken up when the written statement was earlier filed. The only reason ascribed is that due to bona fide mistake this plea could not be taken earlier. In my view, the learned trial Judge has rightly held that since the defendant has neither pleaded nor shown that this plea could not be raised despite due diligence at the time of filing the original written statement, the amendment cannot be allowed. The petition is without any merit and the same is accordingly dismissed in limine. June 20, 2008 ( Deepak Gupta ),J. s. - 4 -