IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 514 of 2009 Reserved on: 07.09.2010 Decided on: 22.09.2010 Kishori Lal …Petitioner. Versus Krishan Lal & others …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioner: Mr. Vikas Bhardwaj, Advocate. For respondent No. 1: Mr. Anand Sharma, Advocate. Deepak Gupta, J. 1. The petitioner, by means of this petition, has challenged the order dated 17.8.2009, passed by the Civil Judge (Junior Division)-I, Dharamshala, whereby the plaintiff has been permitted to amend the suit. 2. Briefly stated the facts of the case are that respondent No. 1 (hereinafter referred to as ‘the plaintiff’) filed a suit against the petitioner (hereinafter referred to as ‘the defendant No. 1’) and the proforma defendants under Sections 34 and 38 of the Specific Relief Act. It was prayed that plaintiff Krishan Lal and defendant are Gaddis by caste and governed by customary law. According to the plaintiff, he and the defendant had inherited the suit land from 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes 2 their mother, Smt. Nihato Devi, being her legal heirs. The defendant No. 1 produced some forged will before the revenue staff and got a mutation attested in his favour. According to the plaintiff, he was in government service and retired in the year 2003. In the main suit, it was prayed that the suit land is jointly owned by both the parties and that Smt. Nihato Devi had never executed any will in favour of the defendant. This suit was filed in the year 2005. The defendant contested the suit and submitted that a registered will had been executed by Smt. Nihato Devi in his favour as far back as 08.01.1981 and that he inherited the property of Nihato Devi in terms of the said will. Thereafter, replication was filed by the plaintiff, in which again it was re-asserted that Nihato Devi had never executed any will in favour of the defendant. It would be pertinent to mention that the replication is very detailed. The case was listed for evidence of plaintiff on a number of occasions and on 12.11.2008, last opportunity was granted to the plaintiff to produce his evidence on 7th January, 2009. On 7th January, 2009, no witness was present, but an application under Order 6 Rule 17 CPC was filed and this application was allowed vide order dated 17.8.2009. 3. Normally, this Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, would not interfere in an order allowing amendment, but in the present case, I am constrained to observe that by way of amendment the entire nature of the suit is being changed. In fact, by way of this amendment, the plaintiff wants to re-write the whole plaint. As far 3 as certain amendments are concerned, they relate to the fact that the plaintiff had inherited the property from Nihato Devi by way of natural succession alongwith defendant No. 1 and proforma defendants No. 2 to 12. Some amendments relate to the description of the land and correction of the areas mentioned in the plaint. As far as these amendments are concerned, there could be no quarrel with the order of the learned trial Court and the same can be allowed. 4. By way of this amendment, the plaintiff now also wants to add certain other pleas which he should have raised in the original suit. As mentioned above, in the plaint it was alleged that Nihato Devi had never executed a will in favour of defendant No. 1 and the will produced is a forged one. Now, the plaintiff wants to change the plaint and state that the will is a result of fraud, collusion, misrepresentation, undue influence, coercion etc. It has also been alleged by the plaintiff that Smt. Nihato Devi was incapable of understanding anything and was not possessing a sound disposing mind and health and, therefore, not in a position to execute the will dated 08.01.1981. 5. If the entire application for amendment is read, it is apparent that the entire nature of the suit is being changed. The plaint has been entirely re-written. Order 6 Rule 17 of the Code of Civil Procedure 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 4 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 6 Rule 17 CPC clearly lays down that in case trial has commenced, then the court shall not allow an application for amendment unless it comes to the conclusion that despite due diligence, the party could not have raised the matter before the commencement of trial. 6. The only reason given in the application for amendment moved under Order 6 Rule 17 CPC for not raising the grounds at an earlier stage are that earlier the plaintiff was represented by some other counsel and that all the facts had been told to such counsel, but he had not incorporated the same in the plaint. Thereafter, the plaintiff engaged another counsel, told the whole facts to him and then the second counsel advised that the plaint should be amended and it was due to this reason that the application for amendment could not be moved earlier. The learned trial Court has accepted this explanation at its face value. On closer examination, I find that this explanation is totally incorrect. A counsel can draft a plaint only on the basis of the facts, which are told to him by a party. A counsel has no personal knowledge of the facts of a case. At the time when the plaint was drafted, it is obvious that the counsel was only told that Nihato Devi had never executed a will. No plea was taken that she was not in a 5 sound disposing mind or that the will was a result of fraud and collusion. It is well settled law that in case fraud is alleged, then details of fraud have to be given in the plaint itself. This was not done. It is also apparent that the plaintiff is not illiterate. He has signed in English and his signatures themselves show that he is not an illiterate person. 7. The only reason for not giving the facts in the original plaint is that when the counsel was changed, only then these facts came to the knowledge of the plaintiff. No doubt, the original plaint has been drafted by some other counsel, namely Mr. Dheeraj Lagwal, Advocate. The suit was filed on 20.08.2005 and Mr. Lagwal appeared only till 12.09.2005. From 08.11.2005, it is Mr. Rajesh Arora, Advocate, a new counsel, who is appearing on behalf of the plaintiff. Written statement was filed when Mr. Rajesh Arora had already been engaged. A detailed replication was filed under the signatures of Mr. Rajesh Arora, Advocate. When replication was filed, obviously Mr. Rajesh Arora, Advocate, would have talked to the plaintiff and if these facts, which are now sought to be incorporated by way of amendment, had been told to Mr. Arora, then he would have incorporated the same in the replication or would have sought the amendment of the suit at that stage itself. The replication was filed on 07.01.2006. Thereafter, certain parties were added, application for appointment of Local Commissioner was considered, issues were framed and the case adjourned for the evidence of the plaintiff on as many as five occasions and it 6 was only on the last opportunity that this application for amendment was filed. 8. Keeping in view the aforesaid facts, I am of the considered opinion that the application for amendment was filed with the mala fide intent of delaying the proceedings and with a view to avoid closure of evidence. The explanation given by the plaintiff is false and it is apparent that the plaintiff did not act with due diligence. Having held so, I still feel that the amendment in line No. 4, line No. 6, line No. 7, line No. 9, line No. 12, line No. 14 and line No. 15, which relate to the description of the property, can be allowed since they are only clarificatory in nature and correct certain errors which have occurred in the plaint. All other amendments, i.e., those in line No. 17, line No. 21, line No. 22 and in the other paras of the plaint are disallowed. Order of the learned trial Court is modified, accordingly. The parties through their counsel are directed to appear before the learned trial Court on 21st October, 2010. In view of the fact that the plaintiff has already been granted five opportunities to lead evidence, he shall be given only one further opportunity to lead evidence and, thereafter, the case be listed for evidence of the defendant. 9. With these observations, the petition is disposed of. No costs. (Deepak Gupta) Judge September 22, 2010 (rajni) 7