IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO.134 of 2011 Date of decision: 9.8.2011 Puran Chand and others ….Petitioners Versus Mela Ram and another ….Respondents Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No For the petitioners: Mr.Karan Singh Kanwar, Advocate. For the respondents: Mr.S.R. Sharma, Advocate. _________________________________________________ Deepak Gupta, J. (oral) 1. By means of this petition, the petitioners have challenged the order dated 7.12.2010 passed by the learned trial Court whereby the applications filed by the petitioners for amendment of the plaint and appointment of Local Commissioner have been rejected. 2. Briefly stated, the facts of the case are that the plaintiffs (petitioners herein) filed a suit against the defendants (respondents herein) claiming that they are co-owners in exclusive possession of the suit land. Their case was that the suit land was shamlat deh but they are in exclusive possession of the same. Further according to the plaintiffs, the defendants were trying to raise 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 construction on the suit land and therefore they also pray for a decree of permanent prohibitory injunction restraining the defendants from interfering in the suit land and also a decree for mandatory injunction for removing the construction, if any, raised. 3. The suit was filed in October, 2008. Written statement was filed on behalf of the defendants in January, 2009 wherein the defendants took the plea that the suit land was joint land. It was however denied that the plaintiffs are in exclusive possession of the suit land and according to the defendants suit had been filed by the plaintiffs with an intention to grab the entire suit land. According to the defendants, they have not raised nor were raising any construction over the suit property. 4. Replication to the written statement was filed in September, 2009. Thereafter, the case was fixed for evidence of the plaintiffs who filed affidavits of the witnesses and thereafter the case was fixed for cross examination of the witnesses. At this stage, in September, 2010 the plaintiffs filed an application in which they submitted that the defendants despite the stay order dated 18.10.2008 had raised construction of four 3 rooms on the suit land from 18.10.2008 to 1.4.2009. An application under Order 39 Rule 2- A was also pending. The plaintiffs sought the following amendment by adding para 6a: “6a. That the defendants after receiving the stay order form this Ld. Court on 18.10.2008 continued with their illegal acts and continued with the construction on the suit land and in 6 months time i.e. from 18.10.08 to 1.4.2009 the defendant’s have constructed 4 rooms set on the suit land during the pendency of the suit, and to ascertain its dimensions the plaintiffs are filing a separate application under Order 26 Rule 9 CPC.” 5. The learned trial Court rejected this application on the ground that the plaintiffs had not shown that they had acted in a diligent manner and no explanation was given as to why they did not file the application for amendment before trial had commenced. Order 6 Rule 17 CPC 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 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 4 raised the matter before the commencement of trial.” 6. A bare perusal of the proviso shows that the Court is debarred from allowing an amendment if the trial has commenced unless it comes to the conclusion that the party seeking amendment in spite of due diligence could not have raised the matter before commencement of the trial. 7. According to the plaintiffs, the construction was raised between 18.10.2008 and 1.4.2009. As pointed out above, the issues were framed on 24.12.2009. No explanation has been given in the application as to why the plaintiffs were silent during the period when construction was raised and why they did not file the application for amendment till issues were framed. There is not even a whisper in the application for seeking amendment as to why the application could not be filed at an earlier stage. Therefore, the trial Court was fully justified in rejecting the application on the ground that the plaintiffs have failed to show that they acted with due diligence or what was the reason why such application was not moved before commencement of the trial. 8. As far as, application for appointment of local Commissioner is concerned, no case whatsoever has been made out for appointment of local 5 Commissioner. The plaintiffs want a local Commissioner to be appointed to assess the age of construction. The Court is not to collect evidence for the parties and the plaintiffs have a different way and method to ensure that their witnesses are permitted to inspect the construction and give an assessment of the age. 9. In view of the above discussion, I find no merit in the petition which is rejected. It is however made clear that this Court has not gone into the merits of the case and any observations made hereinabove shall not affect the decision of the case or the proceedings under Order 39 Rule 2A CPC. There will be no order as to costs. August 9, 2011 (Deepak Gupta) PV Judge