The court's decision emphasized the importance of considering the impact of amendments on the nature and character of the suit, and the need to compensate for lack of due diligence in pursuing litigation.

ORDER :

1. An application moved by the defendants for amendment of the written statement at the stage of evidence was partly allowed by the learned trial Court vide order dated 4.11.2014. The plaintiff has challenged this order in the instant petition filed under Article 227 of the Constitution of India.

2. The status of the parties hereinafter is being referred to as it was before the learned trial Court:

(i) Suit was filed by the plaintiff for vacant possession of the land comprised in Khata Katauni No.101/295(Old) 130/326 (New) and old khasra No.293min, 292, 298, 300 min and new khasra No.719, 723, 725, 734 and 735 total kitas 05, area measuring 00-25-01 hectares situated at Chak Chirgaon, Tehsil Chirgaon, Distt. Shimla H.P. It was submitted that the plaintiff was owner of the suit land. Defendants had illegally encroached upon the suit land, unauthorizedly planted apple plants over the same and changed the nature of the suit land.

(ii) The defence was that the defendants were non-occupancy tenants over the suit land and thus had become owners in possession of the suit land. It was pleaded that the possession of the defendants and their ancestors over the suit land to the knowledge of the plaintiff was open, continuous and peaceful. Therefore the defendants had become the owners of the suit land by way of adverse possession.

(iii) Plaintiff led evidence in support of his contentions. At the stage of evidence, defendants moved an application under Order 6 Rule 17 read with Section 151 Code of Civil Procedure for amendment of written statement. It was pleaded in the application that jamabandi for the year 1970-71 already on record of the case had an entry reflecting them as non-occupancy tenants 'bila adaigi lagan bawaza bai'. In view of this entry, defendants pleaded that the suit land was sold to their ancestors by oral sale due to which non occupancy tenancy was created without payment of rent. It was also stated that prior to 1970, operation of Section 54 of the Transfer of Property Act as well as provisions of the Limitation Act were exempted in respect of sale in the State of Himachal Pradesh. Registration of the instrument was not required to transfer perfect title to the vendee. In view of such assertion, the defendants pleaded that they were entitled to set up alternative plea on the basis of the oral sale. Three specific amendments in the written statement proposed by the defendants in para 6 of their application were as under:-

"(a) New para 2-A of Preliminary objections is to be added as "That since the non-occupancy tenancy has been created Bila Adaigi Lagan Bawajja Hai, hence in case, the defendants are not to be found non-occupancy tenants, then alternatively the defendants have become owners by virtue of oral sale having been made in between the intervening period i.e. 1966-97 and 1970-71 because entry of the ancestors of the defendants Bila Adaigi Lagan Bawajja Hai has for the first time recorded in the jamabandi for the year 1970-71. Meaning thereby oral sale has taken place prior to 1970-71. it is pertinent to mention here that during the said period no registered instrument was required specifically for executing the sale conveying the perfect title upon the vendee in view of the fact that operation of Registration Act as well as Section 54 of TPA was exempted in HP. So oral sale was permissible. Therefore, previously the ancestors of the defendants and now the defendants have become owners in possession of the suit land by virtue of sale.

(b) That para 2(b) is to be added as "That even otherwise, if the sale is also found defective on technical grounds that in alternative the defendants have become owners of the suit land by virtue of adverse possession on account of defective title in view of the sale made prior to 1970-71 and the period of adverse possession has started running with effect from 1970, when the entries for the first time has been recorded as baa waza bai in the name of ancestors of defendants. S