The requirement of due diligence for allowing amendments to pleadings under Order VI, Rule 17 of the Code of Civil Procedure.

JUDGMENT :

Ajay Mohan Goel, Judge (Oral):

By way of this petition, the petitioners have prayed for setting aside order, dated 11.12.2018 (Annexure P-6), passed by the Court of learned Senior Civil Judge, Nalagarh, District Solan, H.P., vide which an application filed by the petitioners-plaintiffs under Order VI, Rule 17 of the Code of Civil Procedure for amendment of the plaint, has been dismissed.

2. Brief facts necessary for the adjudication of the present petition are as under: Predecessor-in-interest of the petitioners, namely, Sh. Chhotu Khan filed a suit for permanent prohibitory injunction against the respondents herein in the Court of learned Civil Judge (Senior Division), Nalagarh in July, 2013. His case was that he was owner in possession of suit property comprised in Khata Khatauni No. 622 min/783, measuring 18.60 sq. metres in Khasra No. 689, situated in Up-Mohal Purana Nalagarh, HB No. 139/1, Pargana & Tehsil Nalagarh, District Solan, H.P. Defendants were absolute strangers qua the suit property and were having no right, title or interest over the same, yet they started demolishing old construction as also started digging foundation in the suit property with intent to grab the property, as the suit land was adjoining the property of defendants. In these circumstances, suit was filed by Shri Chhotu Khan for a decree of permanent prohibitory injunction for restraining the defendants from changing the nature of the suit land or dispossessing the plaintiffs from the suit property by demolishing old construction raised over the suit land by the plaintiff.

3. Written statement to the plaint was filed by the defendants in August, 2013 alongwith a counter claim. In the meanwhile, Shri Chhotu Khan died and his legal representatives, i.e., the present petitioners were brought on record as plaintiffs in place of deceased Shri Chhotu Khan.

4. In the month of November, 2018, an application was filed by the petitioners for amendment of the plaint under Order VI, Rule 17 of the Code of Civil Procedure, on the ground that during the pendency of the suit, the defendants had encroached upon some portion of the suit land in spite of an injunction order somewhere in the month of December, 2013, which had necessitated the amendment of the suit. The application was resisted by the nonapplicants- defendants.

5. Vide impugned order, said application has been rejected by the learned Court below by holding that the application was filed after a lapse of about five years from the date when spot was inspected by the Local Commissioner and further that the nature of the amendment sought in the plaint also did not relate with the controversy in hand, especially in view of the counter claim preferred by the defendants. Learned Court also held that plaintiffs could not explain the delay and why the same was not filed earlier. It thus held that the plaintiffs had failed to show sufficient ground for allowing the application. On these basis, learned Court dismissed the application.

6. Feeling aggrieved, the petitioners have filed the present petition.

7. Learned Senior Counsel for the petitioners has argued that the impugned order is not sustainable in the eyes of law, because it could not be said that the application for amendment of the plaint was filed at a belated stage or that the petitioners had not exercised due diligence. He further argued that because the petitioners were subsequently impleaded as plaintiffs, on account of them being the legal representatives of deceased Chhotu Khan, they had a right to seek amendment in the plaint, as in their individual capacity as plaintiffs, they could rake up the issue subsequently. Learned Senior Counsel has also argued that even otherwise, it was settled law that amendment of plaint was to be liberally allowed by the Courts, as compared to written statement.

8. On the other hand, learned Senior Counsel for the respondents has submitted that there was no infirmity in the impugned order and the findings retur