The court affirmed that amendments to pleadings post-trial commencement are not permitted unless due diligence is shown, emphasizing the restrictive nature of supervisory jurisdiction under Article 227.

JUDGMENT :

Satyen Vaidya, J.

1. By way of instant petition, petitioner has assailed order dated 07.05.2024, passed by learned Civil Judge, Chopal, District Shimla, H.P., in Case No. 26 of 2020, tilted as Ankush Vs. Sushil Chauhan, whereby two separate applications of the petitioner herein under Order 6 Rule 17 of the Code of Civil Procedure, for amendment of written statement and under Order 14 Rule 5 of the Code of Civil Procedure, for amendment of issues, have been dismissed by a common order.

2. Petitioner herein is the defendant before learned Trial Court. Respondent herein (plaintiff) has filed a suit for permanent prohibitory and mandatory inunctions against the defendant on the premise that the plaintiff alongwith other co-owners, is recorded as joint owner in possession of land comprised in Khata Khatouni No. 2/2 Kita 1, Khasra No.469 measuring 0-01-57 Hectare, in Mohal Gorli Patwar Circle Maraog Tehsil Chopal, District Shimla, H.P. (for short “suit land”) and the defendant with help of his associates had started construction of road to village Gorli and in such process has started damaging the suit land not only by throwing debris thereon but by its excavation also.

3. Defendant has filed the written statement by taking objection of non-joinder of necessary parties. It has been submitted that there are several other owners of the suit land and all of them ought to have been made parties. It has also been submitted that since plaintiff has sought relief against persons other than the defendant, the said persons also were required to be impleaded as party defendant. The defendant has claimed right of passage over the suit land by pleading that the same has been used for a period of more than twenty years without interruption and the right has matured by way of easement of prescription and necessity. As per defendant, no new road was being constructed and only repair work was being carried on an existing road.

4. During the pendency of the suit, defendant filed an application for amendment of written statement and sought to add following preliminary objections:-

“Preliminary objection no. 4 that although any portion of the land in dispute is not owned by the plaintiff, in any event if it is proved that any portion of the same is owned by the plaintiff and his brothers, the suit is not maintainable unless his brothers are added as necessary parties. The suit, as such, is bad for non-joinder of necessary parties as plaintiff or Performa defendant.

5. That apparently the suit land is used as passage by the general public. The suit is not maintainable unless the general public is added as a necessary defendant and leave of the court is obtained to sue the general [public in accordance with law and CPC after obtaining necessary permission from the court.

6. That the suit is bad for non joinder of Gram Panchayat Gorli Maraog as a necessary defendant in the suit.”

5. It was averred in the application that the passage in dispute was owned by defendant and his brother alongwith several other villagers and for the such reason brother of the defendant and other villagers were required to be impleaded as defendant. It has further been stated that the land in dispute had been used by several villagers and the general public from time immemorial and hence, the suit was not maintainable unless general public was sued in accordance with law.

6. By way of second application under Order 14 Rule 5 of the Code of Civil Procedure , defendant sought the framing of additional issues on the premise that the defendant has raised specific plea of having acquired easement over the suit land by prescription and necessity.

7. Both the applications were contested by the plaintiff. Learned Trial Court has dismissed both the applications by a common impugned order, as noticed above.

8. While dismissing the application for amendment of written statement, learned Trial Court has held that firstly, the issue as to non-joinder of necessary parties had already been fra