IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 246 of 2011 Decided on: 18.07.2011 Hira Nand Sharma & another …Petitioners. Versus Laiq Ram Sharma & others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioners: Mr. Y.P. Sood, Advocate. For the respondent: None. Deepak Gupta, J. (Oral) The petitioners (hereinafter referred to as the defendants), by means of this petition, lay challenge to the order dated 04.05.2011, passed by the learned Civil Judge (Junior Division), Court No. VI, Shimla, whereby she allowed the application for amendment filed by the plaintiffs. 2. Briefly stated, the facts are that the plaintiffs filed a suit claiming that a water channel (kuhl), known as Chakyana Nal ki kuhl, passes through khasra No. 92 from Government land and they have a right to draw irrigation and drinking water from 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- the said kuhl. It was alleged that the defendants have attempted to tap the water source of this kuhl. 3. The defendants filed written statement and claimed that they are not, in any manner, concerned with the kuhl which passes through khasra No. 92, but are drawing water from a water source, which is situated in khasra No. 109. 4. Issues were framed and parties led evidence and it appears that when the plaintiffs had led evidence and the case was fixed for evidence of defendants, the plaintiffs filed an application for withdrawal of the suit with permission to file a fresh suit on the same cause of action. The reason given for withdrawal was that the plaintiffs had not given complete description of the property including the source of the kuhl, the lands irrigated by the kuhl, etc. This application was contested by the defendants and the learned trial court held that the defect which was pointed out by the plaintiffs cannot be said to be a formal defect and can be rectified by filing an application for amendment. The application for withdrawal was rejected and immediately thereafter the plaintiffs filed application for amendment of the plaint. 5. The basic crux of the suit remains the same. By means of the amendment the plaintiffs prayed was that the kuhl which passes through khasra No. 92 and irrigates their land emanates from khasra No. 109. According to the plaintiffs, the water source to which the defendants are entitled to use, -: 3 :- emanates from khasra No. 110. The basic dispute still remains the same. Whether the defendants have any right to use the water of the kuhl which irrigates the land of the plaintiffs. All that the plaintiffs have done is to give a complete description of the kuhl and the lands irrigated by it. 6. No doubt, this application was filed after trial had commenced and no proper reason has been given why such a plea was not taken at the time of filing of the plaint. The learned trial Court, however, has dealt with this matter and came to the conclusion that though this may be a lacuna in the case of the plaintiff, the fact is that the amendment is necessary to decide the dispute between the parties. 7. This Court is also of the view that keeping in view the fact that the parties are fighting over the water, it would be better if the dispute is settled in one litigation rather forcing the parties to go into other rounds of litigation. 8. Therefore, I find no merit in the petition, which is accordingly rejected. No order as to costs. (Deepak Gupta) Judge July 18, 2011 (rajni)