IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 62 of 2009 Date of decision : 21.4.2010. Lal Singh …Petitioner Versus Surrender Kumar ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Mr. Vinod Thakur, Advocate. For the Respondent : Mr. G.R.Palsra, Advocate. Kuldip Singh , Judge (Oral) The petitioner in the revision has assailed the order dated 17.1.2009 passed by learned Civil Judge (Senior Division), Jogindernagar, in C.M.A. No. 213-VI/08 refusing permission to petitioner to amend the plaint. The petitioner has filed a suit for permanent prohibitory and mandatory injunction against the respondent regarding land measuring 5- 8-19 bighas comprised in Khasra No. 650/82. The suit was contested by the respondent. 2. The petitioner had filed an application under Order 6 Rule 17 C.P.C. for amendment of the plaint inter-alia incorporating the pleas that the Assistant Collector, 1st Grade 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 has passed partition order regarding built up area over which he has no jurisdiction. The petitioner intended to add para 4- A in the plaint as follows:- “That the instrument of partition passed by A.C.1st Grade, Padhar dated 16.4.2008 qua suit land is null and void and not binding on plaintiff and other co-owners on account of following grounds:- a) That it has been passed on the record of field agency which report is not in accordance with the mode of partition dated 5.11.2002. b) That the suit land being mostly built up area the A.C.1st Grade, Padhar had no authority to give order for its partition. c) That the plaintiff though had not appeared before the A.C.1st Grade when summoned but had the right to be associated in partition proceedings on spot but he was not summoned and the land on the front of his house has been illegally allotted to defendant. Similarly after in prayer clause the following prayer be also allowed to be inserted: “The instrument of partition dated 16.4.2008 be declared null and void having no fact over the suit land and similarly the order of A.C.1st Grade, Padhar 5.11.2002 be also declared null and void”. Similarly in the title of suit the words “and for declaration” be also allowed to be inserted.” 3. The application was contested by the respondent and the learned Civil Judge dismissed the application on 17.1.2009 which has been assailed by the petitioner in the present revision petition. 3 4. It has been submitted by the learned counsel for the petitioner that the learned Civil Judge has erred in rejecting the amendment application. The Assistant Collector has no jurisdiction to partition the suit property which is mainly built up area. The other ground is that the instrument of partition was prepared during the pendency of the suit. 5. The application for amendment of the plaint was filed on 9.9.2008. The instrument of partition was prepared on 16.4.2008. The proviso to Order 6 Rule 17 provides 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. 6. The issues were framed on 8.7.2008 in the suit, therefore, the trial had commenced on 8.7.2008. The application for amendment is completely silent why the application was not filed before the commencement of the trial. There is no averment in the application that despite due diligence the petitioner could not file application for amendment of plaint before commencement of trial. Moreover, the petitioner by way of amendment intends to challenge the instrument of partition dated 16.4.2008, such plea otherwise cannot be taken by the plaintiff in a suit in view of bar imposed by Section 171 of the H.P.Land Revenue Act, 1954. It has been submitted by the learned counsel for the respondent that the revision petition is not maintainable. No error of 4 jurisdiction has been pointed out in the impugned order. Thus, taken from any angle there is no merit in the revision petition which is dismissed. The record of the case be sent back immediately and the parties through counsel are directed to appear before the learned trial Court on 13.5.2010. Interim order dated 14.12.2009 is vacated. April 21, 2010. ( Kuldip Singh ) (GR) Judge.