IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMOs No. 175 and 180 of 2007. Judgment reserved on: 8.5.2008 Date of Decision: 3rd June 2008. CMPMO No. 175 of 2007 Shubhkaran ..Petitioner Versus. Punnu & Ors. .. Respondents CMPMO No. 180 of 2007. Shubhkaran ..Petitioner Versus. Punnu & Ors. .. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? For the Petitioner(s): Mr. Vikas Bhardwaj, Advocate. For the Respondent(s): Mr. Ajay Sharma, Advocate. Deepak Gupta, J. This judgment shall dispose of the aforesaid two petitions filed under Article 227 of the Constitution of India since they both arise out of a common order passed by the learned District Judge, Kangra at Dharamsala. 2 Briefly stated the facts of the case are that the petitioner along with proforma respondents 2 & 3, hereinafter referred to as the plaintiffs filed a suit against the respondent No.1, hereinafter referred to as the defendant. The plaintiffs are the sons of Hadu. According to them, their father Hadu had inherited the land from his father Salig Ram and the suit land as such was ancestral. It was alleged that Hadu has sold the suit land vide a sale deed dated 29.9.1982 to the defendant. According to the plaintiffs, Hadu belonged to Brahman Agricultural Community and as per the custom, could not alienate the ancestral land without legal necessity. It was further averred that the amount mentioned in the sale deed was never received by Hadu. Basically, the gist of the case was that the suit land was ancestral and, therefore, no sale could be made except for legal necessity and the sale made by Hadu was without any consideration or legal necessity. The suit was contested by the defendant. The learned trial Court dismissed the suit holding that the plaintiffs have failed to prove that the suit land was ancestral and he also hold that the plaintiffs had failed to 3 prove that the sale was without consideration and legal necessity. The plaintiffs filed an appeal and during the course of the appeal they also filed two applications. One application was under Order 6 rule 17 CPC by which they sought permission to amend the plaint. A perusal of the application for amendment shows that by way of amendment the plea already taken was sought to be set out in greater detail and by means of the amendment, the petitioner was virtually trying to plead evidence in the plaint. Another application under order 41 rule 27 CPC was filed for leading additional evidence to show that the land in question was ancestral. The learned District Judge rejected both the applications vide a common order dated 7.6.2007. As far as the application under Order 6 rule 17 CPC is concerned, the same has rightly been rejected by the learned trial Court. Even in the application for amendment, there is not a single averment as to why the facts stated in the application for amendment were not stated in the original plaint. There is no explanation as to 4 why such amendment was not sought prior to the commencement of the trial. Order 6 rule 17 CPC reads as under:- “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.” It is clear that a party seeking amendment after the trial has commenced must show that despite exercise of due diligence, the matter sought to be incorporated by way of amendment could not be raised before commencement of trial. No such explanation has come in the present case. Further as already held above, the amendment was more in the nature of clarification and appears to have been filed just to delay the proceedings. Therefore, the order in respect of the application for amendment is correct and calls for no interference. However, as far as the application for leading additional evidence is concerned, I am of the considered 5 opinion that the approach of the lower appellate court was not proper. It is settled law that normally an application for leading additional evidence filed under Order 41 rule 27 CPC should be considered along with the main appeal. The learned lower appellate court has rejected the application on the ground that most of the documents sought to be proved on record are public documents and the plaintiffs were aware of the same and as such the court below held that the plaintiffs had not exercised due diligence and, therefore, could not be permitted to produce the same. This part of the order may be correct. However, there is another ingredient of Order 41 rule 27 CPC, i.e. if the appellate court requires any document to be produced to enable it to pronounce judgment or for any other substantial cause. This question could not have been decided in the summary manner as has been done by the learned District Judge. As held by the Apex Court as well as by this Court, time and again, that this question can be best decided at the time of hearing of the appeal. In my view, the learned District Judge should not have decided the application under Order 41 rule 27 and 6 should have heard it along with the main appeal. In case while hearing the arguments, he feels that the documents are necessary to decide the controversy between the parties, he can take the documents on record. The procedure followed by the learned lower appellate court in deciding the application under Order 41 rule 27 CPC without considering the question as to whether the documents are necessary to decide the matter in controversy is not correct. In view of the above discussion, the order of the learned lower appellate court in so far as he has rejected the application for amendment is concerned, is upheld. In so far as the order relates to the application under order 41 rule 27, the same is set aside without expressing any opinion on the merits of the application. It shall be for the lower appellate court while hearing the appeal to consider the question whether the documents sought to be placed on record are necessary for deciding the controversy or not. Both the petitions are disposed of in the aforesaid terms. No costs. June 3, 2008. ( Deepak Gupta ),J. s. 7 8 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 180 of 2007. Judgment reserved on: 8.5.2008 Date of Decision: 3rd June 2008. Shubhkaran ..Petitioner Versus. Punnu & Ors. .. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? For the Petitioner(s): Mr. Vikas Bhardwaj, Advocate. For the Respondent(s): Mr. Ajay Sharma, Advocate. Deepak Gupta, J. For judgment, see judgment of even date rendered in CMPMO No. 175 of 2007, titled Shubhkaran versus Punnu Ram & Ors. June 3, 2008. ( Deepak Gupta ), J. s.