Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 159 (HP)

Ganesh Paul v. Kanta Devi

2016-03-01

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This petition is instituted against Order dated 2.4.2011 passed by learned Civil Judge (Senior Division), Una, District Una, HP, in Civil Misc. Application No. 56-VI-2011. 2. “Key facts" necessary for the adjudication of the present petition are that petitioner-plaintiff field a suit for declaration to the effect that he and proforma defendants are joint owner-in-possession of the land measuring 5-36-36 hectares. Suit was contested by the respondent-defendant by filing written statement. Plaintiff filed an application under Order 6 Rule 17 CPC seeking amendment to the plaint. Application was contested by the defendants. Learned Civil Judge (Senior Division) dismissed the application on 2.4.2011. Hence, this petition. 3. According to the defendants, application was filed at a very belated stage. Issues were framed by the learned trial Court on 22.2.2010. 4. Petitioner-plaintiff has not shown why amendment could not be sought at the early stage of trial. No grounds have been made out for seeking amendment. Court has to arrive at a conclusion that despite due diligence, plaintiff could not have raised the matter before the commencement of trial. Application, in this case, besides being belated is also an afterthought. There is neither any illegality nor perversity in the order passed by learned trial Court. 5. Their Lordships of the Hon'ble Supreme Court in State of Madhya Pradesh v. Union of India and another reported in (2011) 12 SCC 268 have held that where an application is filed after the commencement of the trial, it must be shown that despite due diligence, said amendment could not have been sought earlier. Their lordships have held as under: 7. The above provision deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it must be shown that in spite of due diligence, such amendment could not have been sought earlier. 8. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it must be shown that in spite of due diligence, such amendment could not have been sought earlier. 8. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations. 6. Accordingly, there is no merit in the present petition and the same is dismissed, so also the pending applications, if any.