IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO Nos. 94 and 95 of 2010. Decided on May 27, 2010. 1. CMPMO 94 of 2010 Dharam Dass and others …Petitioners. Versus Prem Swarup …Respondent. 2. CMPMO 95 of 2010. Bhup Ram …Petitioner. Versus Prem Swarup ..Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant M/S. Partap Singh and Arun Verma, Advocates. For respondents 1 & 2 Mr. Bhupinder Gupta, Sr. Advocate, with Ms. Charu Gupta, Advocate. Surjit Singh, Judge (Oral). By this common judgment, two CMPMOs, particulars whereof appear in the title of this judgment, are being disposed of, as the controversy involved, arises out of same facts and situation. 2. Prem Swarup, respondent in both cases, filed a civil suit, being Civil Suit No. 82-K/1 of 1997, in the Civil Court, for issuance of permanent prohibitory Whether reporters of the local papers may be allowed to see the judgment? - 2 - injunction, restraining Bhup Ram and others from cutting trees or changing the nature of the suit land, claiming that he was a joint owner in possession. That suit was contested by Bhup Ram and other defendants, who too were stated as joint owners. Prem Swarup’s claim that he was joint owner, was denied and it was stated he had set up a fictitious Will, purporting to have been executed by one Mahi Ram, who was a joint owner with them. 3. Another suit was filed by late Smt. Kamla against respondent Prem Swarup. Said Smt. Kamla was the wife of Mahi Ram, aforesaid. In her suit, she challenged the Will, allegedly executed by her husband Mahi Ram, in favour of Prem Swarup. That suit was contested by Prem Swarup. He alleged that Will was valid. 4. Both suits were consolidated by the trial Court, for the purpose of recording evidence. During the pendency of those suits, Kamla died. An application was moved by Bhup Ram, one of the defendants in the suit instituted by Prem Swarup, for coming on record as plaintiff, in the suit instituted by Kamla, alleging that said Kamla had executed a will in his favour. That application was allowed. 5. Trial Court decreed the suit, instituted by Kamla, in which Bhup Ram stepped into the shoes of - 3 - Kamla, on her death. Suit filed by Prem Swarup, against Bhup Ram and other joint owners of the suit property, was dismissed. Prem Swarup has filed appeals against the judgments and decrees of the trial Court. Those appeals are pending in the Court of Additional District Judge, Solan. 6. Prem Swarup filed two separate applications under Order 6 Rule 17 CPC, one in the appeal arising out of suit instituted by Kamla and the other in the appeal arising out of his own suit. In one case, he sought amendment of the written statement and in the other, amendment of the plaint. In both applications, he sought permission to plead that Will set up by Bhup Ram for being substituted as legal representative of Kamla in the suit instituted by her was fictitious. Learned Additional District Judge allowed both the applications and permitted amendment of plaint in the suit instituted by Prem Swarup, and in the written statement in the suit instituted by Kamla, deceased against Prem Swarup. 7. Petitioner, in both cases, is aggrieved by orders of Learned Additional District Judge. According to him, Kamla died in the year 1998 and this fact had come to the notice of Prem Swarup in that very year, but he sought amendment of pleadings only in 2009 and that too, when matters were pending in appeal before - 4 - Additional District Judge and, thus, there is a delay of more than 10 years, for which no explanation whatsoever has been put forward. It is also the case of the petitioner that amendment in the plaint could not have been allowed, because in the case instituted by Prem Swarup, question of Will of Mahi Ram was not in dispute and, therefore, Will executed by Kamla who was not even a party to the suit of Prem Swarup, could not have been challenged. 8. I have heard the counsel for the parties and gone through the record. 9. Hon’ble Supreme Court in Surender Kumar Sharma v. Makhan Singh, (2009) 10 SCC 626, while dealing with the question of belated requests for amendment of pleadings, has held as follows: “5. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties, may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered - 5 - discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment. 6. It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by costs or otherwise. (See B.K.Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712) Accordingly, we do not find any reason to hold that only because there was some delay in filing the application for amendment of the plaint, such prayer for amendment cannot be allowed.” 10. Learned counsel, representing the petitioner, has placed reliance upon a three Judge Bench judgment - 6 - of the Supreme Court in S. Kumar v. The Institute of Constitutional and Parliamentary Studies and others, AIR 1984 SC 59, wherein it has been held as follows: “6. As regards the application now filed before us praying for leave to amend the plaint, we are constrained to reject it inasmuch as it is for the first time throughout this protracted proceeding commencing with the institution of the suit in 1975 that the appellant is now seeking to include the relief although he had come to know several years ago that he had been dismissed. No circumstance has been shown explaining why the appellant should be permitted at this late stage to amend the plaint. It has also not been established by the appellant that if a suit is filed now against the order of dismissal, it would be within the period of limitation.” 11. From a bare reading of the judgment, relied upon as precedent by the petitioner, it is clear that amendment in the plaint was sought and that too, when the matter was pending in the Apex Court, to incorporate a new cause of action, which, by then had become time barred. Therefore, the precedent has no application to the facts of the present case. - 7 - 12. Precedent, relied upon by the respondent’s counsel, is applicable to the facts of the case on all fours. However, learned Additional District Judge was not right and even justified in allowing amendment of plaint in the case, instituted by Prem Swarup, because in that case Mahi Ram’s Will was not the subject matter of controversy, nor was Kamla a party to that suit. 13. Consequently, CMPMO 94 of 2010, which pertains to amendment of plaint, is allowed and the impugned order of Additional District Judge, allowing amendment in the plaint, in the suit instituted by Prem Swarup, is set aside. Other CMPMO, i.e. No. 95 of 2010, in which amendment of written statement, in the case instituted by deceased Kamla, has been permitted by the Additional District Judge, is dismissed. 14. Both the petitions are disposed of accordingly. May 27, 2010 (PC). (Surjit Singh), J.