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2023 Supreme(HP) 23
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Vivek Singh Thakur, J.
Akshay Katoch & another - Applicants
Versus
Jai Singh & others - Respondents
Civil Miscellaneous Petition No. 10011 of 2022 In Civil Miscellaneous Petition (Main) No. 446 of 2020
Decided On : 12-01-2023
Advocate Appeared:
For the Petitioner:Mr. Kulwant Singh Katoch, Advocate.
For the Respondent:Ms Devyani Sharma, Advocate
Point of Law: Applicant has filed Appeal during exemption period granted in lockdown but due to inadvertently mistake Applicant could not plead these facts in Application because Applicant was in impression that limitation period had already been extended.
Headnote:
Civil Procedure Code, 1908 – Section 151 – Order 6 Rule 17 – Condonation of delay – Power of Attorney – Applicants are practicing Advocates. Applicant No.1 is son of applicant No.2 – They are conducting this case in person – Applicant No.2 is appearing for both applicants i.e. for himself as well as his son/applicant No.1 being holder of his Power of Attorney – There cannot be any inadvertent mistake due to which appeal could not be filed on same day. [Para 16]
Finding of the Court: Application for condonation of delay has been drafted on same day but no such plea has been taken therein – It is also noticeable that period of limitation was available but application for condonation of delay has been attested one day prior to that, indicating that there was plan to cause delay and to file appeal with application for condonation of delay because for having no merit in appeal, there was possibility of rejection of appeal in limine – There cannot be any inadvertent mistake due to which the appeal could not be filed on the same day – Though there was no lockdown and in any case, applicants were present in High Court, therefore, there was no occasion for them to say in application, being prepared on that day, that due to COVID-19 they could not file appeal within time – On one side applicants are claiming that they intended to file appeal, but Court fee attached with appeal reflects that it was purchased at Solan – From aforesaid facts and circumstances, it is apparent that applicants are hiding true facts from Court and trying to justify delay by way of padding which is contrary to earlier stand taken in application CMP(M) – Even stand taken in CMP(M) apparently not true – Court of considered opinion that proposed amendment is neither explanatory nor amplificatory but is an introduction of new story and thus prayer for amendment warrants rejection.
Result: Application dismissed.
ORDER :
Vivek Singh Thakur, J.
This application (CMP No.10011 of 2022) has been preferred under Order 6 Rule 17 CPC read with Section 151 CPC for amending pleadings of application CMP(M) No. 446 of 2020 for insertion of Para 3-A in application filed for condonation of 112 days’ delay in filing main appeal RSAST No. 20700 of 2020.
2. Applicants are practicing Advocates. Applicant No.1 is son of applicant No.2. They are conducting this case in person. Applicant No.2 is appearing for both applicants i.e. for himself as well as his son/applicant No.1 being holder of his Power of Attorney.
3. Claim of applicants is that due to inadvertent mistake, applicants could not plead the facts, stated in proposed addition by way of para 3-A, because applicants were under impression that limitation period had already been extended by the Supreme Court, whereas these facts are necessary to be pleaded in application to adjudicate the point of controversy involved in application filed for condonation of delay as well as appeal with further submissions that application for amendment is bonafide one and without any malafide intention for the reasons that proposed amendment is necessary for purpose of determining the real question in controversy involved in appeal and addition of proposed para 3-A is not going to cause loss or prejudice to other parties.
4. Application for amendment has been opposed by appearing respondent on the ground that the same is malafide and applicants are proposing the amendment to place on record completely a new stand which is complete somersault from the earlier pleadings in CMP(M) No. 446 of 2020 and the proposed amendment is being prayed with a view to overcome the arguments made in the matter on behalf of respondent, which were recorded by the Court in its order dated 19.7.2022, wherefrom it is evident that facts proposed to be brought on record were never pleaded either in application or during arguments and applicants, who are active practicing Advocates, have failed to show as well as plead due diligence on their part for not incorporating these facts in application for condonation of delay.
5. It has been further submitted by learned counsel for contesting respondents that proposed amendment is neither explanatory nor amplificating the earlier version taken in application for condonation of delay but a new twist to the story has been given by cooking a false story which is not permissible under law.
6. Applicants, to substantiate their plea for allowing the amendment, have referred pronouncement of Punjab and Haryana High Court in case Gurnam Singh vs. Hari Mohan, reported in 2001(2) Civil Court Cases 175 (P&H); and also Paras 23 and 24 of judgment of the Supreme Court in Civil Appeal No. 5909 of 2022, titled Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and another, decided on 1.9.2022, by contending that equity of justice demands that to prevent the abuse of process of the Court, an amendment in terms as prayed should be allowed with further submissions that power to allow an amendment is undoubtedly wide and may be exercised in the interest of justice notwithstanding the provisions of law of limitation, and by awarding cost for inconvenience or expenses caused to the other side as the error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.
7. Learned counsel for contesting respondent, referring Para 70(x) of Sanjeev Builders’ case supra, has contended that proposed amendment is going to change the entire earlier story predicated in the unamended application and shall be amounting to setting up an entirely new case, which is foreign to the case set up in original application, causing grave loss and serious prejudice to the vested rights accrued in favour of respondent and, therefore, injury likely to be caused to respondent cannot be compensated in terms of cost.
8. It is the case of applicants that judgment and decree sought to be assail
