IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 232 of 2010 Date of decision: 15th November, 2010 Sh. Partap Chand Petitioner. Versus Sh. Hari Chand Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 NO For the petitioner: Mr. Manohar Lal Sharma, Advocate. For respondent: Mr. Ajay Kumar, Advocate. Deepak Gupta, J. (oral) This petition is directed against the order dated 2.6.2010, whereby the application filed by the plaintiff for amendment of plaint has been allowed. Basically the dispute between the parties is that according to the plaintiff, the defendant was interfering in his land. This suit was filed in September, 2004. The defendant in his written statement took up the plea that whatever construction had been raised by the defendant was on his own land and not on the land of the plaintiff. During the pendency of the suit, both the parties led evidence and matter was fixed for final hearing. The plaintiff 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 filed an application praying that the defendant during the pendency of the suit in October, 2004 has raised a retaining wall (Danga) in the land of the plaintiff. This application was contested by the defendant and has been allowed by the learned court below. Hence the present petition. 2. Sh. Manohar Lal Sharma, learned counsel for the defendant/petitioner has contended that the plaintiff has not come to court with clean hands, since whereas in the application he has stated that the retaining wall was constructed in October, 2004, while appearing in the witness box, the plaintiff had clearly stated that the wall had been constructed in the month of March, 2004 before filing of the suit. He, therefore, submits that this plea was available to the plaintiff at the time when the suit was filed and he should not to be permitted to raise such a plea at this state. 3. Normally a party is expected to plead all the facts in the plaint itself and as is apparent from the amended provision of Order 6 Rule 17 of the Code of Civil Procedure, after trial commences a party should not normally be permitted to amend the suit so as to incorporate such facts, which were in its knowledge prior to preparation of the plaint. Here there is no manner of doubt that the plaintiff at least in October, 2004 was aware of the fact that such construction had been raised. There is also inconsistency in the averments made in the application 3 and statement made on oath by the plaintiff, however, these questions can not be gone into at this stage. 4. The fact remains that even if the plaintiff was to file a fresh suit after withdrawing the present suit, the same would be within limitation. The amendment will prevent multiplicity of litigation. Therefore, the learned court below was justified in allowing the application. However, I do feel that learned court below has erred in not compensating the defendant with suitable costs, because the defendant had to contest the matter for almost four years and the application for amendment was admittedly filed at highly belated stage. Therefore, while dismissing the petition, in so far as the order under challenge is concerned, it is made clear that the plaintiff shall have to pay Rs. 3000/- as cost to the defendant for delaying the proceedings. With these observations, the petition is disposed of. 5. The parties through their counsel are directed to appear before the learned trial court on 15th December, 2010. On or before the said date, the plaintiff shall pay the costs to the defendant. In case the costs are not paid, the application for amendment shall be deemed to have been dismissed. (Deepak Gupta) Judge November, 15, 2010 (KRS)