Amendments to pleadings post-trial commencement require demonstration of due diligence; mere assertions are insufficient.

JUDGMENT :

Satyen Vaidya, J.

The instant petition has been filed against order dated 31.08.2024, passed by learned Senior Civil Judge, Court No.–II, Shimla, District Shimla, H.P., in CMA No. 561-6 of 2023 in C.S. No. 900367 of 2014, whereby the application of the petitioners for amendment of written statement has been rejected.

2. Petitioners are defendants in the suit filed against them by the plaintiffs for a decree of permanent prohibitory injunction to restrain them from demolishing any part and portion of building of plaintiff bearing Survey No. 74/35, House No. 39, Sadar Bazar, Jutogh Cantonment, Shimla.

3. Defendants are contesting the suit. They have filed their written statement.

4. After the plaintiff led evidence in affirmative and the defendants also concluded their evidence, the defendants came up with an application under Order 6 Rule 17 of the Code of Civil Procedure, seeking amendments to the written statement.

5. It was averred in the application that the defendants had filed their written statement in the year 2015, but on receipt of a legal notice dated 22.04.2022, from the plaintiffs, record was scrutinized and certain new facts relevant to the controversy emerged, which they wanted to incorporate in the written statement by way of amendment. It has also been stated that the matter was old, hence despite due diligence defendants were enable to raise the pleas, as sought to be raised by way of amendment, prior to commencement of trial. Their further case was that by proposed amendment, they will not be withdrawing any admission and otherwise also the amendment as proposed by them was necessary for adjudication of real matter in controversy between the parties.

6. Plaintiffs contested the application.

7. Learned Trial Court vide impugned order has dismissed the application on the ground that the defendants have not been able to make out a case to justify filing of amendment application after commencement of trial. It has been held that the amendment could be allowed after commencement of trial if it was shown by the defendants that despite due diligence, the said facts could not have been raised before the commencement of trial. Further, learned Trial Court found that by way of amendment, defendants were seeking to introduce new pleas, which they could have easily raised at appropriate stage for the reason that reliance was being placed by them on their own record.

8. Having heard learned counsel for the parties and also after going through the record, I am of the considered view that the impugned order does not require any interference for the reasons detailed hereafter.

9. By Amendment Act, 2012, the provision of Order 6 Rule 17 of the Code of the Civil Procedure, has been amended and a proviso has been added, which mandates the Court to allow the amendments in the pleadings after commencement of trial in a case only when the parties seeking amendment is able to satisfy that despite due diligence, the said amendment could not be made before commencement of trial.

10. The jurisdiction of the Court in aforesaid eventualities has clearly been restricted and circumscribed by the use of term “shall” in the proviso appended to Order 6 Rule 17 of the Code of Civil Procedure.

11. In the facts of the case at hand, except for an averment made in the application that the case was old and despite due diligence, the plea could not be raised earlier, no details or explanation have been provided as to what diligence was used. The expression use of “due diligence” cannot be a mere formal expression, it has to be viewed in the context it has been used. It becomes incumbent on the party seeking amendment to the pleadings after commencement of trial to satisfy the Court about the reasons which prevented such party to seek amendment before the commencement of trial, which in the present case is clearly missing. Noticeably, the application for amendment was filed in April 2023 with the averment that the record was scrutinized on receipt of