IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 396 of 2010 Date of decision: 18.11.2010 Tek Chand and another …Petitioners. Versus Balbir Singh …Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioners: Mr. Bimal Gupta, Advocate. For the respondents: Ex-parte. Deepak Gupta, J. (Oral) 1. By means of this petition, the petitioners who are the plaintiffs before the learned trial Court, have challenged the order dated 30.08.2010 whereby the application filed by the petitioners has been rejected. 2. The plaintiffs filed a suit praying that they are co-sharers in the suit land and their shares work out to 129.25 sq. meters. According to them the defendant is a stranger to the suit land and is raising construction on the same. The suit was filed on 29th December, 2006 in which it was 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 alleged that since 27th December, 2006 the defendant has been digging and interfering in the suit land. The suit was contested by the defendant. According to the defendant he was raising construction on his own land after obtaining demarcation of the same. In replication the plaintiffs alleged that despite stay order passed by the Court the defendant had continued to raise construction on the suit land. In fact, proceedings under Order 39 Rule 2-A are also pending before the trial Court. It would be pertinent to mention that in the suit a decree for mandatory injunction has been prayed for removal of the construction raised by the defendant over the suit land. 3. The learned trial Court rejected the application mainly on the ground that the application was filed after completion of the trial and at the time when the case was fixed for arguments. The learned trial Court, however, held that in case the plaintiffs are able to prove that there is encroachment over the suit land the relief can be moulded. I would further clarify that in case the learned trial Court comes to the 3 conclusion that any construction has been raised after issuance of the stay order then it is the duty of the Court to ensure that such construction is removed. However, amendment cannot be allowed in view of the fact that the plaintiffs in their application for amendment have not stated a single word as to why such application was not filed before framing of issues when admittedly even according to the plaintiffs the defendant had raised the construction by that time. 4. Order 6 Rule 17 read 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 party could not have raised the matter before the commencement of trial.” 4 5. A bare perusal of the proviso to this order clearly shows that the legislature in its wisdom by this amendment curtailed the powers of the Court and has specifically laid down that matters which could have been raised before framing of issues must be raised at that stage or the parties seeking amendment must show to the Court that in spite of due diligence the parties could not have raised such an issue before the Court. 6. There is not even a single averment in the application of the plaintiffs to show that they had acted with due diligence nor have they given any reason for not taking this plea earlier. Therefore, the petition is rejected. No order as to costs. 18th November, 2010 (Deepak Gupta) ™ Judge