IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 225 of 2006 Judgment reserved on: 27.3.2008 Date of decision : April 10, 2008 Kishan Chand and others. …Petitioners. Versus. Baru Ram …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge . Whether approved for Reporting ? For the Petitioner: Mr. Bimal Gupta & Mr. Karan Kanwar, Advocates. For the Respondents: Mr. K.D.Sood & Sanjiv Sood, Advocates. Deepak Gupta, J (Oral) The petitioners, hereinafter referred to as the plaintiffs, filed a suit for permanent injunction for restraining the defendant from interfering or raising any construction on the suit land. This suit was filed on 21.10.2002. Written statement was filed on 28.11.2002 in which various defences were raised. It was also averred that the defendant had already raised construction in portion of the suit land. Counter-claim was also filed in which the defendant prayed that a decree of declaration be passed that the defendant is a co-sharer to the extent of 4 – 18 bighas of land - 2 - and that the sale deed executed by one Mangal in favour of the plaintiffs is illegal and void qua his share. In the prayer clause to the counter claim, it was prayed that the counter-claim may be dismissed and in case the court comes to the conclusion and finds that illegal construction has been raised, the same may be ordered to be removed and the defendant be asked to hand- over the vacant possession of the suit land. The suit filed by the plaintiffs was partly decreed and the counter-claim dismissed. The defendant filed an appeal. During the pendency of the appeal, the plaintiffs filed an application under Order 6 Rule 17 CPC seeking amendment of the plaint. By way of amendment, the plaintiffs sought to add a prayer seeking restoration of the possession of the land. In para-3A, it is sought to be pleaded that the construction was raised after ad interim injunction was passed on 16.10.2002. The other amendments are only consequential. This amendment has been rejected by the learned lower appellate court mainly on the ground that the amendment cannot be allowed in view of the proviso to Order VI Rule 17 CPC as amended. Order VI Rule 17 CPC reads as follows:- “17. 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 - 3 - 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 party could not have raised the matter before the commencement of trial.” The proviso to Order VI Rule 17 CPC clearly lays down that after the amendment to the CPC, the parties can be allowed to amend the pleadings after commencement of trial only in case the Court comes to the conclusion that despite exercise of due diligence the party could not have raised the matter before the commencement of trial. I have heard Shri Karan Singh Kanwar learned counsel for the plaintiffs and Shri Sanjiv Sood learned counsel for the defendant. It has been argued on behalf of the petitioners-plaintiffs that the party i.e. plaintiffs were exercising due diligence. In the written statement to the counter-claim a specific plea had been taken that the possession be ordered to be restored to the plaintiffs and the counter-claim be dismissed. It is argued that the mistake, if any, was of the counsel who did not at once seek amendment of the plaint also. - 4 - On the other hand, the learned counsel for the defendant has supported the order and has pleaded that the plaintiffs should have amended the plaint at that stage itself and this application filed at the belated stage is highly belated. I have gone through the records of the case and considered the entire material on record. The suit was filed on 16.10.2002 and ad-interim order was passed in favour of the plaintiffs on that date itself. In the written statement a defence was raised that the construction had been raised much prior to the passing of the order. Counter-claim was filed as already mentioned above. In the reply to the counter-claim, the plaintiffs claimed vacant possession of the suit land even if construction had been raised. It would have been appropriate for the plaintiffs to have sought amendment of the plaint at that stage itself. However, the lack of diligence is not of the party since the party told all the facts to the lawyer who drafted the reply to the counter-claim accordingly but took no steps to amend the plaint. The party should not be made to suffer for the fault of the lawyer. Therefore, it cannot be said that the plaintiffs acted without due diligence. The question whether the construction was raised prior to or after the commencement of the suit is important and shall - 5 - go to the root of the matter. Therefore, in my view, the plaintiffs should have been permitted to amend the plaint. In view of the above discussion, the order passed by the learned Additional District Judge, Sirmaur at Nahan in CA No. 1-N/13 of 2005 dated 6.7.2006, is set aside and the plaintiffs are permitted to amend their plaint. The proceedings have been going on for long. The parties through counsel are directed to appear before the learned Additional District Judge, Sirmaur at Nahan on 5th May, 2008. The amended plaint shall be taken on record and the defendant may file written statement to the same. Thereafter, if any, issue(s) arises, the same shall be framed by the learned Additional District Judge. The learned Additional District Judge shall not remand the case but may either call for a finding on the new issue(s) framed from the trial court or may record evidence itself. Thereafter he shall make all endeavour to decide the appeal at the earliest and in any event not later than by 31st December, 2008. No costs. April 10, 2008 ( Deepak Gupta ), J s.