IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No.292 of 2007. Date of decision:04.09.2008. Chet Ram & Others …Petitioners Versus Ghishu & Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Petitioners: Mr.Bimal Gupta, Advocate. For Respondents 1-8: Mr.K.D. Sood, Advocate. Dev Darshan Sud,J. This petition under Article 227 of the Constitution of India has been filed by the plaintiffs against the order of the learned trial Court rejecting their application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint. It is un-disputed before me that prior to this, the plaintiffs had been in this Court in CMPMO No.289 of 2006 which petition was allowed and costs of Rs.5000/- were imposed. While disposing of the petition, the Court had directed that the trial Court shall proceed to dispose of the amendment application 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 filed on 21st August, 2007 which is now the subject matter of the present petition. While considering the prayer of the petitioner herein, the learned Court observed that the amendment application has been preferred at the time of rebuttal evidence. The amendment sought was to the effect that to save the land from auction in execution of the decree the father of the plaintiff and defendant namely Pisu, Musnhi and defendant Ghishu through his natural guardian Munshi mortgaged the land of Lachhu and Attru sons of Sh.Jhandu, Bhaja and Jaimal and such mortgage was created through registered deeds though only one such deed is traceable and the other is not traceable. The decretal amount/loan of the bank was paid by Pisu, the father of the plaintiff and this fact is proved from the application and endorsement of Pisu and the bank of Sirmaur respectively etc. Learned Court holds that allowing this application would be introducing a new cause of action and would change the entire nature of the case which according to the Court stands concluded. The Court holds that in the evidence of PW-1 he has stated that in order to meet the debt, Pisu Ram had mortgaged some of the land of Lachhu, Attru, Bhaja, Jai Mal etc. but reception of this evidence was objected to on the ground of being beyond pleadings. To similar effect, the evidence of other two 3 witnesses Ram Swaroop PW-2 and Mela Ram PW-3, was also objected to on the ground of beyond pleadings. It is by now well settled that the amendment which is necessary should be allowed in the interest of justice and technical approach is to be avoided. I do not find from the amendment that it introduces a total new cause or that any admission made in favour of the respondents has been withdrawn by the petitioners herein. Rather in the case as it stands today is that the evidence of the plaintiff was objected to on the ground of pleadings which have now been sought to be introduced in the plaint. If that be so, it is not an element of surprise as the defendants are well aware of the case when the plaintiff and his witnesses appeared during the trial. It also cannot be said that the case stands concluded as at the time of rebuttal evidence this application was made. Mere introduction of the amendment does not mean proof of the fact or its conclusive nature which has to be established otherwise by way of evidence. In the totality of the facts and circumstances of the case, I feel it just and proper in case this petition is allowed. The amendment sought for is allowed to be placed on the record of the case and the respondents are given a chance to file their amended pleadings and also an opportunity to lead such oral/documentary evidence contrary to 4 the amendment sought to disprove the fact in the amendment sought. This will, of-course, be subject to the petitioners herein, paying Rs.2,500/- as costs to the respondents. The costs shall be paid on the first date of appearance before the trial Court. It is clarified that in case costs are not paid on the first date, this petition will be deemed to have been dismissed and the order rejecting the amendment shall revive. Parties to appear before the trial Court on 30th October, 2008. Records received be sent back to the trial Court immediately. September 4, 2008. (Dev Darshan Sud) (aks) Judge.