IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No.63 of 2008. Date of decision: 20.03.2008. Sh.Jatinder Dev Singh and others …..Petitioners -Versus- Bir Singh and others ….Respondents Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. Whether approved for reporting? For the Petitioners: Mr.Ajay Chandel, Advocate. For the respondents: None Deepak Gupta, J(oral) This petition is directed against the order of the learned Civil Judge (Senior Division), Nurpur, District Kangra passed in CMA No.1 of 2008 in Civil Suit No.152 of 1998 decided on 7.1.2008. The petitioners (hereinafter referred to as the plaintiffs) filed a suit for declaration to the effect that they are owners/co-sharers in possession of the suit land and that the entry showing the father of the defendants as gair- marusi tenant in the column of cultivation in the revenue reports is wrong, null and void. The defendants filed written statement in which they raised number of pleas. One of the pleas raised was that the dispute arises out of the proceedings under the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971. In the written statement the defendants specifically pleaded as follows: “It is absolutely wrong that the defendants as well as their fathers never cultivated the suit land. Since the land during consolidation proceedings were allotted to the defendants as per the scheme of the village and the possession of the newly allotted land were not delivered by the Consolidation Officer who are duty bound to deliver the possession and the 2 Hon’ble High Court of H.P vide order dated 27.4.76 observed that in the village the tenants have not been delivered the possession and the plaintiffs in connivance with the Halqua Patwari un-authorisedly got the Girdawari changed in their favour which after inquiry and vide order dated 28.1.1986 of the Additional Director Consolidation of Holdings of H.P. struck the said wrong entry and the defendants were ordered to be entered as non- occupancy tenants and on the basis of order dated 28.1.86 the possession of the suit land was delivered to the defendants on 6.11.97, on the spot and now the proprietary rights of ownership has also been conferred upon the defendants vide Mutation No.305 dated 22.4.98, and the defendants are owners in possession of the suit land.” Thereafter, the suit proceeded to trial and the same was dismissed. Appeal was filed by the plaintiffs. Learned Appellate Court held that the trial Court had not framed certain issues which arose out of the pleadings of the parties and framed two additional issued and remanded the suit. The case was then listed for evidence on the additional issues and in the meantime the applicants moved an application for amendment of the plaint on 26.12.2007. Basically the prayer made in the application and in the proposed amended plaint was that the order of the Additional Director, Consolidation of Holdings passed on 28.1.1986 is without any authority, illegal, null and void and is either to be ignored or set-aside. The learned trial Court has rejected this application mainly on the ground that despite the written statement having been filed as far back as in the year 1998 the plaintiffs took no efforts to amend the plaint to challenge the orders of Director of Consolidation of Holdings. He also came to the conclusion that the plaintiffs have failed to show that there were due diligence in raising the matter before the commencement of the trial in terms of the proviso to Order 6 Rule 17 and that the application has been moved at a highly belated stage and hence cannot be allowed. As far as the proviso to Order 6 Rule 17 CPC is concerned, the same may not be applicable to the present proceedings since the suit had been filed much prior to the amendment of the Code of Civil Procedure. However, a party has to be 3 vigilant about its rights and must show the reasons for the delay in filing an application. Even though the trial Court may not have been strictly correct in applying the proviso to Order 6 Rule 17 CPC it is apparent that the application is highly belated. Furthermore, if the amendment is allowed it would effectively amount to permitting the plaintiffs to challenge the order of the Additional Director, Consolidation of Holdings. This cannot be allowed for two reasons. One is that an order of the Director passed under the Consolidation Act is not amenable to the jurisdiction of the Civil Court. The correctness of such an order cannot be challenged in the Civil Court in view of the bar to the jurisdiction of the civil Court under Section 57 of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 which reads as follows: “57.Jurisdiction of civil court barred as regards matters arising under this Act.- No person shall institute any suit or other proceedings in any civil court with respect to any matter arising out of the consolidation proceedings or with respect to any other matter in regard to which a suit or application can be filed under the provisions of this Act.” The second reason is that the order was passed in the year 1986. Admittedly once the written statement was filed the petitioners were in knowledge of the said order. The limitation to set-aside the order even if otherwise permissible, is only one year in terms of Article 100 of the Limitation Act, 1963. The amendment, therefore, cannot be allowed at this stage. In view of the above discussion, I find no merit in the petition which is accordingly rejected. March 20, 2008. ( Deepak Gupta ), PV Judge