An application for amendment of pleadings under Order VI Rule 17 of the C.P.C. filed after the commencement of trial cannot be allowed unless the party demonstrates that, despite due diligence, the matter could not have been raised before the commencement of trial.

Order

1. The petitioners-plaintiffs have filed the present writ petition under Article 227 of the Constitution of India challenging the order dated 05.04.2025 (Annx.7) passed by the Civil Judge, Marwar Junction, District Pali, whereby the petitioners’ application under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (for short ‘C.P.C.’ hereinafter) has been rejected.

2. The application sought permission to amend the plaint to include a prayer for reconstruction of ventilators (sunshades) allegedly demolished by the respondents, which the petitioners claim affects their easementary rights to light and air.

3. Heard learned counsel for the parties.

4. Learned counsel for the petitioners submits that the petitioners are co-owners of an ancestral house at Village Auwa, Tehsil Marwar Junction, District Pali, constructed approximately 61 years ago, with three ventilators (sunshades) adjoining the respondents’ house. Through these, the petitioners have enjoyed uninterrupted air and light, thereby acquiring an easementary right. It is alleged that during construction of the adjoining property, the respondents demolished the sunshades, interfering with this right.

5. It is submitted that the petitioners instituted a suit for permanent and mandatory injunction on 16.05.2016 seeking protection of their easementary rights. The respondents filed a written statement denying the allegations. Issues were framed on 24.05.2018, and the trial court granted a temporary injunction restraining the respondents from causing obstruction. Subsequently, the petitioners filed an application under Order VI Rule 17 read with Section 151 of C.P.C., which was dismissed by the trial court on 05.04.2025.

6. Learned counsel for the petitioners contends that amendments necessary to determine the real controversy must be allowed. It is submitted that the relief sought was already reflected in paragraph 8 of the plaint, and the application was merely clarificatory. It is further contended that the proposed amendment does not alter the nature of the suit and seeks additional or alternative relief based on already pleaded facts, and thus, causes no prejudice to the respondents.

7. In support of his contention, learned counsel for the petitioners has relied upon the following decisions :-

i. Life Insurance Corporation of India vs. Sanjeev Builders Private Limited & Anr. reported in (2022) 0 AIR (SC) 4256

ii. Dinesh Goyal @ Pappu vs. Suman Agarwal (Bindal) & Ors. (2024 INSC 726).

iii. Pankaja and Ors. vs. Yellappa (D) by LR’s and Ors. reported in AIR 2004 SC 4102

8. In contrast, Mr. J.K. Bhaiya, learned counsel appearing on behalf of the respondents, while supporting the order impugned has opposed the writ petition. It is submitted that the issues were framed on 24.05.2018 and the statement of P.W. 1 – Khush Kumar was recorded on 04.11.2024, whereas, application for amendment has been filed only on 25.11.2024. It is contended that the application for amendment was, thus, filed only after the commencement of the trial, which reflects an undue delay on the part of the petitioners. Further, it is emphasized that the issues relating to the claim for a mandatory injunction have already been duly framed and are presently under consideration by the court. It is argued that allowing the proposed amendment at this stage, would not only disrupt the orderly progress of the proceedings but would also effectively alter the very nature of the suit. Such an alteration, acco