2025:HHC:29026 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 244 of 2025 Decided on: 27.08.2025 Tara Chand … Petitioner Versus Ravinder Singh and another … Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes ___________________________________________________________________ For the petitioner : Mr. Lokesh Thakur, Advocate vice Mr. Pranav Dhar, Advocate. For the respondents : Mr. Rajesh Kashyap, Advocate for respondent No. 1. Ajay Mohan Goel, Judge (Oral) By way of this petition filed under Article 227 of the Constitution of India, the petitioner has assailed order dated 08.01.2025, passed by the learned Appellate Court, in terms whereof, an application filed under Order VI, Rule 17 of the Code of Civil Procedure by the respondents herein during the pendency of the appeal for the amendment of the plaint has been allowed. 2. Learned Counsel for the petitioner has referred to the application filed under Order VI, Rule 17 of the Code of Civil Procedure, copy whereof is appended with the petition as Annexure P-1 and submitted that it was simply mentioned therein that the appeal was pending before the learned Court and as at the time of 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:29026 filing of the suit, the plaintiff due to inadvertent omission, could not claim recovery of earnest money of Rs. 90,000/-, therefore, the plaintiff be allowed to amend the plaint and he may be permitted to make an alternative prayer for recovery of Rs.90,000/- alongwith interest from the date of agreement to sell, i.e. 02.12.2006. He further submitted that learned Appellate Court erred in allowing this application without appreciating that in the absence of the applicant demonstrating that the proposed amendment could not be incorporated initially despite due diligence, there was no occasion for the learned Appellate Court to have had allowed the amendment. 3. On the other hand, Mr. Rajesh Kashyap, learned Counsel for the respondent has submitted that as the proposed amendment was innocuous and as the same was necessitated on account on inadvertent omission, therefore, the act of the learned Appellate Court in allowing the application cannot be faulted with. 4. I have heard learned Counsel for the parties and also carefully gone through the pleadings as well as documents appended therewith, including the impugned order. 5. Undisputed facts are that the respondent herein filed a Civil Suit for specific performance against the present petitioner in the year 2012. The suit was dismissed by the learned Trial Court on 3 2025:HHC:29026 20.07.2022. During the pendency of the appeal, an application was filed by the plaintiff/appellant under Order VI, Rule 17 of the Code of Civil Procedure in the year 2023. A perusal of the application demonstrates that all that is mentioned in para 3 thereof is that at the time of filing of the suit, the plaintiff due to inadvertent omission has not claimed the recovery of earnest money, i.e. Rs. 90,000/- and therefore, the plaintiff wanted to amend the plaint on this count by adding the prayer as mentioned in the application. 6. In terms of the impugned order, this prayer has been allowed by the learned Appellate Court by inter alia holding that as the proposed amendment in the alternate was by way of an amendment in the reliefs prayed for by the applicant/plaintiff and as the same would certainly help the Court in deciding the controversy and would not change the nature of the suit between the parties, therefore, the same can be allowed. Learned Court also held that as far as the issue of the claim being time-barred, as appeal was in continuation of the suit, therefore, as the main relief prayed for was within limitation, the ancillary relief was also to be construed within limitation. 7. This Court is of the considered view that the findings returned by the learned Appellate Court are not sustainable in the 4 2025:HHC:29026 eyes of law. In terms of the provisions of the Order VI, Rule 17 of the Code of Civil Procedure, all amendments, which are necessary for the adjudication of the case, can be allowed by the Court at any stage. However, in terms of the proviso added thereto, it is clear that in case the proposed amendment is sought after the commencement of the trial, then, no amendment shall be allowed until and unless the party seeking amendment demonstrates due diligence. 8. In the present case, the Civil Suit was filed in the year 2012. The amendment was sought in the year 2023, that too before the learned Appellate Court and on the ground of inadvertence. It is settled law that negligence is antithesis to due diligence. Because the onus was upon the applicant/plaintiff to demonstrate due diligence, which it utterly failed to demonstrate in the application, therefore, there was no occasion for the learned Appellate Court to have had allowed the application so as to permit the plaintiff to carry out the proposed amendment after 11 years from the date of filing of the suit and that too during pendency of the appeal before the learned Appellate Court. Not only this, this Court does not concur with the findings returned by the learned Appellate Court that the alternative prayer which was for recovery of Rs. 90,000/- was not time-barred. 5 2025:HHC:29026 This Court is of the considered view that whenever any amendment is prayed for by a party, then obviously, the Court is duty bound to look into this aspect of the matter that as to whether the proposed amendment being prayed for is time-barred or not. In case, time- barred reliefs are permitted to be introduced by way of amendments, then this would amount to giving premium to the act of omission of such a party, which can never be the spirit of Order VI, Rule 17 of the Code of Civil Procedure. Of course, in a given set of circumstances, where the aspect of delay is arguable, the prayer of amendment could be allowed and the issue of limitation is framed separately for decision (see: Life Insurance Corporation of India versus Sanjeev Builders Private Limited and another, (2022) 16 Supreme Court Cases 1). Therefore, as this Court is satisfied that the belated application, which was filed by the plaintiff for the amendment of the plaint during the pendency of the appeal was not maintainable, as it was not fulfilling the parameters laid down in Order VI, Rule 17 of the Code of Civil Procedure, and as this aspect of the matter has been completely ignored by the learned Court below while allowing the said application, this petition is allowed and order dated 08.01.2025, passed by the learned Appellate Court in Civil Appeal 6 2025:HHC:29026 No. 14 of 2022, titled Ravinder Singh Vs. Tara Chand is set aside. Pending miscellaneous application(s), if any, also stand disposed of accordingly. (Ajay Mohan Goel) Judge August 27, 2025 (narender)