IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 394 of 2004. Judgment reserved on: 17.6.2008 Date of Decision: 25th June, 2008. ________________________________________________________________ Smt.Surinder Jit Kaur and another … Petitioners Versus Smt.Ajit Jaijee and another … Respondents. ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? Yes For the Petitioner (s) : Mr.Bhupinder Gupta, Senior Advocate With Mr.Janesh Gupta, Advocate. For the Respondents : Mr. Vishal Panwar, counsel for respondent No.1. ________________________________________________________________ Deepak Gupta, J. This petition under Article 227 of the Constitution of India is directed against the order dated 24.7.2004 passed by the learned Addl. District Judge, Solan whereby he rejected the application filed by the plaintiffs for amendment of the replication. Briefly stated the facts of the case are that the plaintiffs and the defendants are all the successors in interest of late Smt.Mohinder Kaur. The plaintiffs are the daughters of Smt.Mohinder Kaur and the defendants are widow and son of pre-deceased son of Smt.Mohinder Kaur. Smt.Mohinder Kaur died on 3.11.2001 and according to the plaintiffs they 2 inherited the property of Smt.Mohinder Kaur to the extent of 2/3rd share in equal shares and defendants 1&2 were to jointly inherit the remaining 1/3rd share. According to the plaintiffs the suit property is joint amongst the co-sharers and the same has not been partitioned. They therefore prayed that a decree for partition and separation of the suit property by metes and bounds be passed. This suit was contested and in the written statement it was alleged that Sardar Hem Singh, the husband of Smt.Mohinder Kaur was having properties in Patiala as well as in Solan. The properties were ancestral and during his life time Sardar Hem Singh had transferred some properties to his wife and daughters which he could not have transferred since these were the ancestral properties. According to the defendants their predecessor Sh.Gurjit Singh that is the brother of the plaintiffs on attaining majority objected to the transfer of the property by his father Hem Singh in favour of Smt.Mohinder Kaur and her two daughters and thereafter the matter was orally settled and Sh.Gurjit Singh brother of the plaintiffs took possession of the house and properties situated in Solan and he was admitted to be the absolute owner in possession of the properties at villages Bajrol Kalan and Bajrol Khurd now falling in District Solan, H.P. and also 3 the property in village Katal Kathol whereas the properties transferred by Sardar Hem Singh in the name of his daughters in Punjab would remain in their ownership and Smt.Mohinder Kaur was given ownership of Golel Kothi at Patiala. According to the defendants this family arrangement arrived at in the year 1970 was reduced to writing in the memorandum dated 17.6.1972. As a result it was prayed that the properties were no longer joint and therefore the plaintiffs were not entitled to seek partition thereof. The plaintiffs filed replication. In the replication they denied that any family settlement had been arrived at in the year 1970. They also denied that any writing had been executed on 17.6.1972 as alleged. The other contentions raised in the written statement were also denied and it was prayed that the suit be decreed. The issues in the case were framed on 1.5.2003. Issue No.4 was directed to be treated as a preliminary issue and the case was listed for evidence on the preliminary issue on 25.6.2003, 8.7.2003 and 4.8.2003. On the last date, an application under Order 6 Rule 17 CPC was filed seeking amendment of the replication. By means of this application the plaintiffs sought to amend the replication and raise the plea that Smt.Mohinder Kaur had been entered as owner of 4 the suit land situated in villages Bajrol Kalan and Bajrol Khurd from 26.8.1956 and the said land continued to be in her name and possession and therefore she had become owner by way of adverse possession. It was further alleged that even if the defendants are able to prove the alleged family settlement/arrangement then also this will have no effect on the case since Smt.Mohinder Kaur had already perfected her right to the property by way of adverse possession and hence the defendants had no right, title or interest over the aforesaid land. It was also sought to be pleaded that out of the suit land five biswas were purchased by Smt.Mohinder Kaur from Khiali Ram in the year 1956 through an oral agreement and she was coming in possession of the land since that time even though registered sale deed was executed on 28.1.1997. The plaintiffs by means of the proposed amendment also plead that after perfecting her title in the suit property Smt.Mohinder Kaur had given the same to the plaintiffs in a family settlement. The learned trial Court rejected this application mainly on the ground that the proposed amendment would change the vary nature of the suit since previously the plaintiffs had sought partition of the suit land but now claim 5 exclusive ownership and possessory rights over the same. This order is under challenge before me. I have heard Sh.Bhupidner Gupta, learned senior Advocate on behalf of the petitioners and Sh.Vishal Panwar, learned counsel on behalf of the respondents. According to Sh.Gupta the proposed amendment would not change the nature of controversy of the suit. He also submits that the plaintiff is not taking inconsistent pleas. He has submitted that the suit land remains the same and the crux of the dispute remains unchanged which is with regard to the inheritance of the property of Mohinder Kaur. On the other hand Sh.Vishal Panwar has supported the order of the learned trial Court. Reliance has been placed by Sh.Bhupinder Gupta on the judgment of the Apex court rendered in Usha Devi vs. Rijwan Ahamd and others, (2008)3 SCC 717. In my opinion, this judgment really does not help the petitioners. It has been decided in its peculiar facts and circumstances. All that has been said in para 16 is as follows: “16.As to the submission made on behalf of the respondents that the amendment will render the suit non-maintainable because it would not only materially change the suit property but also change the cause of action it has only to be pointed out that in order to allow the prayer for amendment the merit of the amendment is hardly a relevant consideration and it will be 6 open to the respondent-defendants to raise their objection in regard to the amended plaint by making any corresponding amendments in their written statement.” No doubt any Court while considering an application for amendment of the pleadings is not required to enter into the merits of the amendment. However, there are two important differences in the present case. The Apex Court in the aforesaid case did not decide the question as to whether the amendment was hit by the proviso to Order 6 Rule 17 CPC. Order 6 rule 17 as amended reads as follows: “17.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 trial.” The proviso to Order 6 Rule 17 has come into force w.e.f. 1.7.2002. The present suit was filed after 1.7.2002. Issues were framed and parties led some evidence on the preliminary issue. Therefore, it is apparent that the trial had commenced. As such the proviso to Order 6 Rule 17 CPC was applicable in the present case. In the application the 7 only reason given for not having taking the pleas earlier are as follows: “2.That in the above case the present plaintiffs/applicants had filed replication to the written statement filed by the defendants. Due to bonafide mistake, the plaintiffs could not take the plea of adverse possession and also could not brought certain other facts to the notice of this Hon’ble Court in their replication and hence in order to take the plea of adverse possession and to bring other fact which have been left from the pleadings, the plaintiffs want to amend their replication by way of adding certain lines in para No.3 of the replication, adding para No.2(a) in the replication and the prayer clause. 5.That despite exercise of due diligence the above amendment could not be made earlier through some bonafide mistake.” Other than merely stating that the facts now sought to be pleaded could not be brought to the notice of the Court due to bonafide mistake no other explanation has been given. It is true that in cases not covered under the proviso this Court is normally very liberal in granting amendments. However, as observed in Usha Devi’s case supra the law has undergone a sea change. In para 7 the Apex Court held as follows: “7.Amendment of pleadings used to be one of the easiest things in the course of judicial proceedings before the amendments came to be made in CPC in the year 1999. It was felt that the provision for amendment of pleadings (Order 6 Rule 17) was greatly abused and it was one of the significant sources of delay in the judicial process. Accordingly, as per the recommendation of the Law Commission, the provision for amendment of pleadings was altogether deleted by Act 46 of 1999. The 8 deletion of the provision led to widespread protests by lawyers and different legal bodies and as a result the provision was once again introduced, albeit with a rider, by Act 22 of 2002, with effect from 1.7.2002. In its amended form, Rule 17, Order 6 carries a proviso that bars any amendment after the commencement of trial unless the court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial.” In the present case the amendment has been sought after the trial has commenced and the plaintiffs have failed to give any cogent or valid explanation as to why they could not plead the facts now sought to be pleaded in the original replication. The proviso is couched in mandatory language. It mandates that the Court shall not allow any application for amendment unless it comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. There is no such explanation forthcoming. Therefore, the amendment should not have been allowed on this ground alone. Even otherwise, I am of the view that though the property may remain the same and the predecessor may remain Smt.Mohinder Kaur the amendment shall change the very nature of the suit. In the original plaint the plaintiffs had prayed for partition claiming 2/3rd share in the property and admitting that 1/3rd share belongs to the defendants. It is only when the defendants took up the plea that the suit 9 property had exclusively fallen to their share in a family settlement that the plaintiffs now seek to take a new plea that Smt.Mohinder Kaur had become owner by way of adverse possession. They claim that Mohinder Kaur’s possession was adverse to the defendants. They also claim that Smt.Mohinder Kaur had transferred the suit property in favour of the plaintiffs in a family settlement. These pleas are totally inconsistent with the pleas earlier raised by them. This changes the very nature of the suit. In view of the above discussion, I find no error in the order of the learned trial Court and the petition is accordingly rejected. There will be no order as to costs. June 25, 2008. ( Deepak Gupta ),J. PV