IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

CMPMO No. 786 of 2019 Decided on: 09.04.2025 ____________________________________________________ Roop Chand and another ……….. petitioners Versus Jagdish Chand and another ……….respondents ____________________________________________________

Coram:

Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? ¹ For the petitioners : M/s. C.N. Singh, Devender Sharma, Anshul Gandhi Advocates.

For the respondents : Mr. Adarsh Kumar Vashista, Advocate, for respondent No.1.

: Mr. Arush Matlotia, Advocate, for respondent No.2.

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Bipin Chander Negi, Judge (oral)

Petitioners in the case at hand are the defendants before the trial Court. Suit in the case at hand was filed by the present respondent No.1 on 12.06.2012. The same was partly decreed on 30.04.2015. The appeal preferred there against was decided vide judgment dated 13.12.2018. Vide judgment dated 13.12.2018, the 1^st Appellate Court set aside the judgment and decree dated 30.04.2015. It framed an additional issue directed the trial Court to give an opportunity to both the parties to lead evidence qua the additional issues so framed and in the aforesaid backdrop, remitted the matter to the trial Court.

1 Whether the reporters of the local papers may be allowed to see the judgment?

2. In the aforesaid backdrop on 19.08.2019, an application for amendment of the plaint was filed by the present respondents/plaintiffs before the trial Court. By virtue of the same, certain typographical errors in the description of the suit property, were sought to be got incorporated.

3. Per contra, it was contended on merit that the respondent had been negligent in conducting the present case. The amendment sought was not a clerical or typographical error. 4. The trial Court while allowing the application was of the view that though the discrepancy sought to be rectified was being sought at a belated stage, however, since the same pertained to the description of the suit property, therefore, the present petitioners/defendants before the trial Court could be suitable compensated by payment of cost. Other than the aforesaid, the trial Court was of the view that the amendment was necessary for deciding the real controversy inter se the parties and the same ought to be allowed in order to avoid multiplicity of litigation.

5. Heard counsel for the parties & perused the pleadings.

6. The entire object of the amendment to Order 6 Rule 17 CPC as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement to trial, to avoid surprises and that the parties had sufficient knowledge of other’s case. It also helps checking the delays in filing the applications.

7. Amendment cannot be claimed as a matter of right. The proviso to Order 6 Rule 17 virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced. After the commencement of trial, an application for amendment can only be allowed once the Court comes to the conclusion that inspite of due diligence, the parties could not have raised the matter before the commencement of the trial. In view of the proviso to Order 6 Rule 17, the absolute discretion to allow amendment, at any stage, therefore stands curtailed. In this regard, a reference can be made to (2019) 4 SCC 332 titled as M. Revanna vs. Anjanamma (dead) by legal representatives and others.

8. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term “due diligence” is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial. The term “due diligence” determines the scope of a part