IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.508 of 2019 Decided on: 04.04.2025 Kishan Lal ….Petitioner Versus Kamla Devi & others ...Respondents Coram Hon’ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting? For the petitioner: Mr. Surinder Saklani, Advocate. For the respondent: Mr. Rakesh Manta, Advocate, for respondents No.1 and 2. Respondents No.4 to 6 ex-parte. Satyen Vaidya, Judge (Oral) Heard. 2. The instant petition has been filed assailing the order dated 13.09.2019, passed by learned Civil Judge, Dalhousie, District Chamba, H.P., in Case No.110/2013, whereby the application of the petitioner herein for amendment of written statement has been dismissed. 3. The petitioner and proforma respondents No.4 to 6 are defendants No.1 to 3 and 5 before learned trial Court. The suit has been filed against them and others by their sisters for partition of joint land. The parties hereafter shall be referred by the status as they hold before learned trial Court 2 4. In the original written statement filed by the defendants, it has been averred that the house, in respect of which the partition was being sought, was not a joint property and in fact had been constructed by the defendants from their own funds. 5. At the fag end of the proceedings of the suit, when both the parties concluded the evidence, the defendants came up with an application to amend the written statement and sought to incorporate an additional plea that they had perfected the title over the suit property by way of adverse possession as they were in continuous uninterrupted possession for the last 40 years. 6. The application was resisted. Learned trial Court has dismissed the application vide impugned order primarily on the ground that the defendants had not been able to satisfy the Court that despite due diligence they could not seek the amendment before commencement of trial. It has also been held that the amendment, if allowed, will amount to introduction of a new defence which will be contradictory and mutually destructive. 7. Having gone through the records, more particularly the contents of the application filed by the defendants under Order 6 Rule 17 of the Code of Civil Procedure, it is found that except for a bald assertion that despite exercise of due diligence 3 the plea of adverse possession could not be taken before the commencement of trial, nothing has been placed on record to substantiate such plea. 8. The proviso appended to Rule 17 of Order 6 by Amendment Act 2012 is mandatory in nature. The Court can allow the amendments sought by the parties after commencement of trial, in case it is satisfied that the party seeking the amendment was prevented by any sufficient cause from doing so before commencement of trial. In this view of the matter, without there being any factual foundation laid in the pleadings to justify the reasons for not filing application for amendment before commencement of trial, the Court is precluded from adjudging on the jurisdictional fact. 9. In the instant case also, since, the petitioner herein had not laid any factual foundation for not incorporating the plea of adverse possession before commencement of trial, learned trial Court has rightly come to the conclusion that there were no justifiable reasons to satisfy the Court as to existence of any circumstances which prevented the petitioner from filing the application at appropriate stage. 4 10. In result, no illegality, perversity or error of jurisdiction is found in passing of impugned order. Petition is according dismissed so also the pending application(s), if any. 11. Record be immediately sent back to learned trial Court. The parties are directed to appear before the learned trial Court on 30th April, 2025. ( Satyen Vaidya ) Judge April 04, 2025 (vt)