JUDGMENT : Sandeep Sharma, J. Instant petition filed under Art. 227 of the Constitution of India, is directed against order dated 17.9.2018 passed by learned Civil Judge, Court No.2, Paonta Sahib, District Sirmaur, Himachal Pradesh, whereby an application having been filed by the petitioners-plaintiffs (hereinafter, 'plaintiffs') under Order VI, rule 17 CPC being CMA No. 179/6 of 2018, praying therein for amendment of plaint, came to be dismissed. 2. For having a bird's eye view, necessary facts as emerge from the record are that the plaintiffs filed a suit i.e. Civil Suit No. 2818/2013 (Annexure P-2) for declaration that the plaintiffs and respondents-defendants (hereinafter, 'defendants') are co-owners in joint possession of the land denoted by Khewat Khatauni No. 380/660, Khasra No.784, measuring 38.25 square metre and Khasra No. 1557, measuring 256.20 square metres, total land measuring 294.45 square metre situate in Mauza Muhal Up Sampada Badri Nagar, Tehsil Paonta Sahib, District Sirmaur, Himachal Pradesh (hereinafter, 'suit land') and that the Will No.197/2009 registered on 10.7.2009 is illegal, result of fraud, misrepresentation and duress and not binding upon plaintiffs. 3. Suit having been filed by the plaintiffs came to be resisted by defendants by filing written statement (Annexure P-3), taking preliminary objections of maintainability, cause of action, suppression of material facts and estoppel. Most importantly, defendants, while totally denying the case of the plaintiffs on merit, also disclosed factum with regard to existence of second Will executed by late Smt. Lajwanti in their favour. Record reveals that though the plaintiff filed replication on 12.8.2015 but at that time, no prayer, if any, came to be made on their behalf for amendment of plaint on account of disclosure of second Will. After three years of filing of replication, plaintiffs by way of application under Order VI, rule 17 CPC (Annexure P-4) in question, prayed for amendment of plaint, averring therein that the plaintiffs and defendants are real brothers and sisters and their parents had made an arrangement amongst all the four brothers, who are in separate mess and residence amongst themselves. Plaintiffs averred that after death of their mother, they approached Patwari Halqua for entering mutation of inheritance amongst survivors but there it transpired that defendant No.1 has presented Will allegedly executed by late Smt. Lajwanti bequeathing suit property in their favour. Plaintiffs averred that after death of their mother, they approached Patwari Halqua for entering mutation of inheritance amongst survivors but there it transpired that defendant No.1 has presented Will allegedly executed by late Smt. Lajwanti bequeathing suit property in their favour. Plaintiffs further averred that immediately they took steps and after obtaining copy of second Will, engaged Shri N.L. Parwal, Advocate, who assured them that he would take necessary steps for inclusion of second Will in the suit. Plaintiffs also averred that they remained under bona fide belief that the suit included both the properties but it was only when counsel was preparing case for evidence with regard to second Will, factum with regard to non-inclusion of second Will in the suit came to the fore. Plaintiffs further averred that they became suspicious and engaged one H.S. Shah, Advocate, who disclosed that second Will qua property of Shamsherpur, Paonta Sahib, has not been included in the suit, as such, they engaged Shri Ajay Chauhan, Advocate, who advised them to file instant application under Order VI, rule 17 CPC praying therein for amendment of plaint. 4. Aforesaid application filed by the plaintiffs came to be resisted by defendants, who stated in their reply that the trial has already commenced and plaintiffs after taking numerous opportunities to lead evidence, have moved instant application solely with a view to prolong the litigation and harass them. Defendants also resisted the application on the ground that plaintiffs by way of making amendment in the plaint, intend to introduce a new case and challenge the Will qua another land, which is not the suit land as such, application, if allowed, would change the nature of the suit, which is not permissible. 5. Learned Court below, on the basis of pleadings adduced on record by respective parties, dismissed the application filed by the plaintiffs. In the aforesaid background, plaintiffs have approached this Court in the instant proceedings. 6. Having heard learned counsel for the parties and perused the material available on record, vis-a-vis reasoning assigned by learned Court below in the impugned order, this Court finds no illegality or infirmity in the impugned order, which otherwise appears to be based upon proper application of the facts as well as law, as such, no interference is called for. Mr. Having heard learned counsel for the parties and perused the material available on record, vis-a-vis reasoning assigned by learned Court below in the impugned order, this Court finds no illegality or infirmity in the impugned order, which otherwise appears to be based upon proper application of the facts as well as law, as such, no interference is called for. Mr. Desh Raj Thakur, learned counsel for the plaintiffs strenuously argued that proposed amendment, if allowed, would not change the complexion of the suit rather same would enable learned Court below to adjudicate the controversy inter se parties in a most effective manner. While making this Court peruse the amendment sought, Mr. Thakur, made a serious attempt to persuade this Court to agree with his contention that amendment, if allowed, would not fundamentally change the character of the suit, rather, parties to the lis would be saved from another round of litigation. In support of his aforesaid contentions, Mr. Thakur placed reliance upon following judgments: 1. (2009) 10 SCC 84 2. (2009) 10 SCC 626 3. (2002) 7 SCC 557 4. AIR 2004 SC 4102 5. AIR 2010 AP 89 6. 2017 HLR (2) 711 7. AIR 1955 SC 425 7. It is not in dispute that the suit having been filed by the plaintiff is for declaration that the plaintiffs and defendants are co-owners in joint possession of the suit land and Will No. 197/2009, dated 10.7.2009, is illegal, being result of fraud, misrepresentation and duress and as such, same is not binding upon them. Definitely there is no challenge, if any, to the second Will, factum whereof allegedly came into the notice of the plaintiffs after filing of the written statement by the defendants. It is also not in dispute that the written statement to the suit on behalf of the defendants came to be filed in the year 2013, whereafter, plaintiffs filed replication on 12.8.2015 but thereafter also, no effort, if any, ever came to be made on behalf of the plaintiffs for moving an appropriate application for amendment. It is only at evidence stage, that an application under Order 6 Rule 17 CPC, praying therein for amendment of plaint came to be filed on behalf of the plaintiff. 8. It is only at evidence stage, that an application under Order 6 Rule 17 CPC, praying therein for amendment of plaint came to be filed on behalf of the plaintiff. 8. Though, having carefully perused the averments contained in the plaint, especially the relief prayed for therein vis-a-vis averments contained in the application for amendment, this Court has no reason to disagree with the finding returned by learned Court below that amendment, if allowed, would change the entire complexion of the suit. Even otherwise, if the explanation rendered on record by plaintiffs for amendment of plaint is accepted, there is no explanation for delay in moving the application. As has been noticed herein above, written statement, wherein factum with regard to existence of second Will allegedly executed by late Smt. Lajwanti in favour of defendants, came to be disclosed, was filed on 30.7.2013, whereas, application for amendment came to be filed in the year 2017 i.e. after four years. Moreover, plaintiffs filed replication to the written statement in the year 2015, but even at that stage, no steps, if any, ever came to be taken by the plaintiffs for amendment of plaint. 9. Though, the plaintiffs have stated in their replication that they immediately after having acquired knowledge with regard to existence of second Will, handed over the same to their counsel for inclusion in the suit filed by them, but it cannot be accepted that for good four years, they did not come to know that second Will allegedly provided by them to their counsel, has not been included in the suit. Moreover, in the application, it has been stated that they, after having become suspicious, contacted one Mr. H.S. Shah, Advocate, who disclosed that second Will of property at Shamsherpur, Paonta Sahib, has not been included in the suit, meaning thereby that the Will allegedly executed in favour of defendants by late Smt. Lajwanti, is not qua the property, which is subject matter of the instant suit, rather, that pertains to property in Shamsherpur, Paonta Sahib. 10. Even otherwise, there is no explanation that once they had engaged Mr. H.S. Shah, Advocate, why thereafter, they went to another Advocate Mr. Ajay Chauhan, who then advised them to move the application in question. 11. 10. Even otherwise, there is no explanation that once they had engaged Mr. H.S. Shah, Advocate, why thereafter, they went to another Advocate Mr. Ajay Chauhan, who then advised them to move the application in question. 11. Leaving everything aside, this Court is of the view that merely leveling allegations against their counsel, would not suffice to prove that the plaintiffs had instructed their counsel to include second Will in the suit immediately after filing of the written statement, especially when there is no specific date, month or year mentioned when counsel representing the plaintiff was instructed to include second Will in the suit. Moreover, there are no averments made in the application that the plaintiffs despite due diligence, could not take steps for moving appropriate application for amendment immediate after having acquired knowledge with regard to existence of second Will, rather, specific case of the plaintiffs is that they, after having acquired knowledge with regard to existence of second Will i.e. in the year 2013, had instructed their counsel to include second Will in the suit. As has been noticed herein above, there is no evidence worth credence in this regard available on file. 12. Otherwise, pleadings adduced on record clearly reveal that on one hand, plaintiffs specifically pleaded in para-2 of the plaint that they and defendants are owners of suit land as same was purchased by plaintiffs in the name of their mother, Lajwanti but, on the other hand, by way of proposed amendment, plaintiffs have taken altogether a different stand by stating that late Mohan Lal and Lajwanti during their lifetime made settlement of property amongst their sons by giving land denoted by Khasra No. 777, 778, 784, 785 and 786 measuring 265.13 square metre to plaintiff No.1, on which he has constructed house in the year 1980 and is living in the same since then and similarly, old house situate over 7 Biswa of land was given jointly to plaintiff No.2 and defendant No.1, which is their residence and remaining land of Khata Khatauni No. 69/162 was given to Sohan Singh and late Balwant Singh, and remaining land in Khasra No. 1557 measuring 256.20 square metre was kept joint for all the brothers. 13. 13. Having perused the amendment proposed by the plaintiffs in its entirety, this Court is in full agreement with learned Court below that proposed amendment, being contradictory and inconsistent with the contents of plaint, cannot be permitted. Otherwise also, averments contained in the plaint, if are read juxtaposing the proposed amendment, no fault can be found with the finding of learned Court below that the amendment, if allowed, would fundamentally change the nature and character of the suit. 14. In view of detailed discussion made herein above, this Court finds no force in the arguments advanced by learned counsel for the plaintiffs and same are rejected. 15. Their Lordships of the Hon'ble Supreme Court in State of Madhya Pradesh v. Union of India and another, (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. 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." 16. 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." 16. The Hon'ble Apex Court in Chakreshwari Construction Private Limited vs. Manohar Lal, (2017) 5 SCC 212 , has culled out certain principles while allowing or rejecting the application for amendment, which are as under:- "13. The principle applicable for deciding the application made for amendment in the pleadings remains no more res integra and is laid down in several cases. In Revajeetu Builders and Developers vs. Narayanaswamy & Sons, (2009) 10 SCC 84 , this Court, after examining the entire previous case law on the subject, culled out the following principle in para 63 of the judgment which reads as under: (SCC p.102) "63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money. (4) refusing amendment would in fact lead to injustice or lead to multiple litigation. (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive." 17. It is quite apparent from the aforesaid exposition of law, that court, while considering application under Order VI, rule 17 CPC for amendment of plaint is required to see whether proposed amendment, if denied, would, in fact, lead to injustice or lead to multiplicity of litigation. These are only illustrative and not exhaustive." 17. It is quite apparent from the aforesaid exposition of law, that court, while considering application under Order VI, rule 17 CPC for amendment of plaint is required to see whether proposed amendment, if denied, would, in fact, lead to injustice or lead to multiplicity of litigation. Similarly, it is also required to be seen by the court, while considering application under Order VI, rule 17 CPC, whether application for amendment is bona fide or mala fide and amendment, if allowed, would fundamentally change the nature and character of the suit. 18. In the case at hand, amendment, if allowed, would change the entire complexion of the suit, therefore, no fault, if any, can be found with order passed by learned Court below. Hence, in view of the aforesaid law laid down by Hon'ble Apex Court, judgments relied upon by learned counsel for the plaintiff have no application to the facts of the present case. 19. However, having taken note of the fact that Hon'ble Apex Court in Chakreshwari Construction Private Limited (supra) has categorically held that as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application, but, having perused Art. 65 of Limitation Act, this Court is in agreement with Mr. Thakur, learned counsel for the plaintiffs that while considering application under Order VI, rule 17, court below further erred, while returning findings on the issue of limitation for filing subsequent suit, if any, laying therein challenge to second Will, allegedly executed by late Smt. Lajwanti. 20. Consequently, the impugned order is upheld to the extent of dismissal of the application under Order VI, rule 17 CPC filed by plaintiffs, however, findings qua issue of limitation returned by learned Court below, for filing fresh suit laying therein challenge to second Will, are set aside. Petition stands disposed of in the above terms. Pending applications, if any, are disposed of. Interim direction, if any, is vacated.