IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 330 of 2010 Date of decision: 16th November, 2010 Smt. Sharda and another Petitioner. Versus Sh. Mohan Singh and another Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 For the petitioners: Mr. G.R. Palsra, Advocate. For the respondents: None. Deepak Gupta, J. (oral) This petition is directed against the order dated 14.7.2010, whereby the learned trial court allowed the composite application filed by the plaintiffs/respondents under Order 1 Rule 10 and 6 Rule 17 of the Code of Civil Procedure. Notice of this petition was issued to the respondent, but despite service, they have not put in appearance. Hence the matter is being decided in their absence. 2. Briefly stated, the facts of the case are that the plaintiffs filed a suit in which it was alleged that the suit land is recorded in the ownership of the defendants and others. 3. According to the plaintiffs, this land had been granted as Nautor to Sh. Narpat, predecessor-in-interest of the defendants. After the death of Sh. Narpat, defendants had agreed to sell their share of land, which works out 2-16 Bighas, 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 in favour of one Sh. Dharam Chand, predecessor-in-interest of the plaintiffs for a consideration of Rs. 20,000/-. According to the plaintiffs Rs. 5,000/- was paid at the time of agreement and thereafter balance sale consideration was also paid in the year, 1992 and the plaintiffs were put in possession of the suit land. Sale deed could not be executed since the same was not permissible under the Nautor Rules. It was contended that the defendants are interfering in the possession of the plaintiffs and on this basis, a prayer was made that the suit be decreed and the defendants be restrained from causing any interference in the suit land. It was further prayed that the defendants be restrained from dispossessing the plaintiffs from the suit land. 4. This suit was contested by the defendant and one of the preliminary objections raised was that the land was also jointly owned by Sh. Bal Krishan and Asha Devi and they are necessary parties to the suit. The other averments made in the suit were denied. Thereafter issues were framed and both the parties led evidence. At the stage of hearing when the case was fixed for arguments, an application under Order 1 Rule 10 and Order 6 Rule 17 of the Code of Civil Procedure was filed. The first prayer in the said application was that Sh. Bal Krishan and Asha Devi who were the children of late Sh. Narpat, be arrayed as parties in the suit and second prayer was that now the plaintiffs wanted to amend the suit and claimed that they 3 had become owners of the suit land by way of adverse possession. The learned trial court allowed this plea. Hence the present petition. 5. As far as allowing the prayer for impleading Sh. Bal Krishan and Asha Devi as party is concerned, I do not see any error in the order of the learned trial court. True it is that the application has been made at a belated stage, but the fact is that the defendants themselves had raised this objection and impleading the said parties would avoid multiplicity of litigation. Hence this part of the order is upheld. 6. However, the next part of the order, allowing the amendment, in my view is totally wrong. Order 6 Rule 17 of the Code of Civil Procedure, after its amendment in the year, 2002 reads as follows:- “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 questions in controversy between the parties: Provided 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 4 party could not have raised the matter before the commencement of trial”. A bare reading of the proviso, clearly shows that no application for amendment shall be allowed after 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. In the application, the only averments made is that despite due diligence, such plea could not be raised. This is not compliance with the provisions of the section. A party seeking amendment after trial has commenced, especially at the stage when the case is fixed for arguments, must clearly spell out the reasons why it could not raise the plea at the time when the suit was filed. This was not done in the present case. A party who seeks the amendment of the pleadings after an commencement of trial must spell out the reasons why such plea was not taken in the original pleadings. Therefore, the portion of the order, whereby the amendment has been allowed is set aside. With these observations, the petition is disposed of. The Registry is directed to send back the record of the case to the learned trial court at the earliest. The petitioner is directed to appear before the learned trial court on 27th December, 2010. (Deepak Gupta) Judge November, 16, 2010 (KRS)