IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No. 339 of 2016 Decided on: 07.04.2025 ____________________________________________________ Lal Bahadur ……….. petitioner Versus Dr. Satish Rathour and another ……….respondent ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? 1 For the petitioner : Mr. Parmod Singh Thakur, Advocate. For the respondent : Mr. Sunil Chauhan, Advocate. ____________________________________________________ Bipin Chander Negi, Judge (oral) The present petition has been filed laying a challenge to impugned order 10.06.2015 passed in CMA No. 42-6 of 2015 titled as Lal Bahadur vs. Dr. Satish Rathour and another by learned Civil Judge (Junior Division), Court No.7, District Shimla H.P., whereby an application under Order 6 Rule 17 filed by the present respondent for amendment of written statement has been allowed. 2. Heard counsel for the parties. Perused the pleadings. 3. Admittedly in the case at hand, the amendment now sought to be made in the written statement is being made after trial has commenced i.e. framing of issues. 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 4. The entire object of the amendment to Order 6 Rule 17 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. 5. 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. 6. 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 3 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 party’s constructive knowledge, claim and is very critical to the outcome of the suit. In this respect, a reference can be made to (2012) 2 SCC 300 titled as J. Samuel and others vs. Gattu Mahesh and others. 7. All that is stated in the application under Order 6 Rule 17 is that despite due diligence, amendment as is being sought to be made could not be incorporated at the time of filing written statement. Simply stating so in the application filed, seeking amendment is not enough to enable the Court to consider the application in the light of the amended provisions. Specifically proviso to Order 6 Rule 17, as it stands after 2002. In this respect, a reference can be made to AIR (2005) Himachal Pradesh 21 titled as Jeet Ram Kishore and others vs. Sunder Singh. 8. Even otherwise from a perusal of the amendments now sought, it is evident that a totally new defence is sought to be raised thereby surprising the other side. Other than the aforesaid, admissions made in the written statement previously filed are now being withdrawn. 4 9. In view of the aforesaid, the present petition is allowed. Impugned order dated 10.06.201 5 is set aside/quashed. Pending miscellaneous application(s), if any, shall also stand disposed of. The parties are directed to appear before the trial Court on 22.04.2025. (Bipin Chander Negi) Judge April 07, 2025 tarun