IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.304/2022 Date of Decision: 23rd September, 2025. Kaushalya and Ors. .....Petitioners Versus Med Ram and Ors. ….Respondents Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Petitioners: Mr. N.K. Bhalla, Advocate (through VC). For the Respondents: Mr. P.S. Goverdhan, Sr. Advocate with Mr. Rakesh Thakur, Advocate, for respondent No.1. Mr. Arsh Chauhan, Advocate, vice Ms. Bhanvi Negi, Advocate, for respondents No.2 and 3. Respondent no.4 proceeded against ex parte. None for respondents No.5 and 6. Bipin Chander Negi, Judge (oral). By way of the present petition, a challenge has been laid to the impugned order dated 21.05.2022 (Annexure F), passed by the learned Civil Judge Solan, District Solan, HP, whereby an application filed under Order 6 Rule 17 CPC filed by the present petitioners/defendants, has been dismissed. 2. Heard counsel for the parties, perused the impugned order and the records appended along with the petition. 3. The suit, in the case at hand, for possession was filed in the year 2008. Written statement thereto was filed 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 on 06.01.2009. Evidence of the parties was concluded on 18.01.2017. Application for amendment was filed on 09.03.2020, when the matter was listed for arguments. 4. The suit filed is appended along with the present petition as Annexure-B. The suit for possession was filed on the basis of an observation made by the Apex Court, while dismissing a SLP on 29.10.1996 inter se the parties. Based on the observations made, the present respondents were claiming to be owner in possession to the extent of half share in the house detailed in the headnote of the suit. In the written statement filed to the suit, one specific objection raised, which is now sought to be clarified by way of an amendment, was detailed as preliminary objection No.5. The same reads as under:- “5. That the plaintiff himself has constructed house on joint land.” 5. From a perusal of the application filed under Order 6 Rule 17 CPC, the aforesaid preliminary objection No.5 is sought to be explained. It is submitted in the application that present respondents No.2 and 3 have constructed their house after framing of issues and after commencement of trial. It is further averred that present respondent No.1 has also renovated his house and increased the area. Hence, it is averred that a suit for 3 partial partition is not maintainable. This specific averment has been categorically denied in the reply filed, as is evident from para 4 of the reply on merits to the application filed. 6. Order 6 Rule 17 reads as follows: “17. Amendment of pleadings-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commences, 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.” 7. With a view to shorten the litigation and speed up the trial of cases Rule 17 was omitted by amending Act 46 of 1999. This rule had been on the statute for ages and there was hardly a suit or proceeding where this provision had not been used. That was the reason it evoked much controversy leading to protest all over the country. Thereafter, the rule was restored in its original form by amending Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to some extent. 8. The proviso limits the power to allow amendment after the commencement of trial but grants discretion to the court to allow amendment if it feels that the party 4 could not have raised the matter before the commencement of trial in spite of due diligence. 9. The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (Eighth Edition), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs. (See 2008 (5) SCC 117, Chander Kanta Bansal Vs. Rajinder Singh Anand). 10. In the aforesaid backdrop no fault can be found with the reasoning given by the trial Court whereby trial Court concludes that no reason has been afforded by the 5 petitoner in his application qua its belated filing. A party seeking to use the adjudicatory mechanism to attain an anticipatory relief must also show due diligence. As in seeking relief stemming out of a claim, the party must exercise due diligence and it is a requirement, which cannot be dispensed with. In fact, in the case at hand, the petitioner has not shown due diligence at all. I see no reason to differ with the view taken by the trial Court. 11. The moving of the application, in the case at hand, reflects a mala fide intent on the part of the petitioner to protract the proceedings in the case at hand pending consideration before the learned trial Court. By virtue of the amendment sought, no useful purpose shall be obtained, as the suit in the case at hand pertains to grant of a decree of possession in favor of the respondents on the basis of an observation made by the Apex Court, as reflected in para 5 of the plaint (Annexure-B). the amendment sought is not necessary for determining the real question in controversy nor is it necessary for an effective and proper adjudication of the controversy inter se the parties. 12. Even otherwise, the present petition has been preferred under Article 227 of the Constitution of India. This Court has a restricted and limited jurisdiction to 6 interfere under the correctional jurisdiction vested in it in terms of Article 227 of the Constitution of India, except to set right a grave dereliction of duty or flagrant abuse or violation of fundamental principle of law or justice, miscarriage of justice, un-reasonable conclusion and perversity. 13. Besides the aforesaid, in a supervisory jurisdiction reviewing or re-weighing evidence, substituting conclusions, correcting every error of fact or even a legal flaw when the final finding is justified or can be supported is not permissible. (See Sadhana Lodh vs. National Insurance Co. Ltd. & another, (2003)3 SCC 524, and Garment Craft vs. Prakash Chand Goel, (2022)4 SCC 181). 14. In the case at hand, for the reasons stated here-in- above, I am of the considered view that no ground is made out in the present petition for invoking the jurisdiction of this Court under Article 227 of the Constitution of India. 15. In view of above terms, I see no reason to interfere in the impugned order, therefore, the present petition is dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of. Parties are directed to appear before the learned trial Court on 08.10.2025. (Bipin Chander Negi) Judge 23rd September, 2025 (Gaurav Rawat)