IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No.504 of 2022 Decided on 11th September, 2025 Suraj Kumar Walia …Petitioner Versus Smt. Poonam Walia and others …Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge 1Whether approved for reporting? Yes For the petitioners: Mr. Karan Singh Kanwar, Advocate. For the respondents: M/s Anuj Nag and Hakam Bhardwaj, Advocates. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioner has assailed the order passed by the learned Appellate Court, in terms whereof, the application filed by the petitioner for amendment of the application has been dismissed. 2. I have heard learned counsel for the parties and have also carefully gone through the impugned order as well as documents appended with the petition. 3. It is a matter of record that the application seeking amendment of the plaint was filed during the pendency of the first appeal. The application itself is on record appended with this petition as Annexure P-2. In terms of the application, the 2 proposed amendment sought by the petitioner was to the effect that it intended to add figure 5.04.2004 after the word Power of Attorney dated 04.02.2003 and in addition add Para-12A by way of proposed amendment. The reason given in the application as to why the proposed amendment could not be incorporated earlier in the plaint is that during the preparation of the arguments (at the appellate stage), it transpired that the plaintiff had inadvertently failed to mention the second General Power of Attorney dated 05.04.2004 alongwith the earlier Power of Attorney on the basis of which the suit property was fraudulently sold by the General Power of Attorney Holder. 4. This application has been rejected by the learned Appellate Court by assigning the following reasons:- “I have heard learned counsel for the parties and have gone through the records carefully. Notably, the proviso to Order 6 Rule 17 states that no application for amendment shall be 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. Further, in Surender Kumar Sharma Vs Makhan Singh (2009) 10 SCC 626, it was observed that 'it is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to 3 the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment. In this case, plaintiff has inadvertently failed to mention the second general power of attorney dated 5.4.2004 along with general power of attorney dated 4.2.2003 on the basis of which the suit property has been fraudulently sold by the general power of attorney holder Sh. Parveen Pal, predecessor-in- interest of respondents No. 1 to 4 prejudicial to the right, title and interest of the applicant in the suit property. It has been further submitted that at the time of preparation of the arguments, the applicant has come to know that as a matter of fact, Sh. Parveen pal has fraudulently used the second GPA dated 5.4.2004 in alienating the suit property. However, the amendments, specially in appellate stage cannot be allowed to be made on plea of inadvertence. The petitioner/appellant has tried to give an absolutely new dimension to the disputes which should not be allowed to be taken, more particularly, at the appellate stage. The amendment as intended to be made in the plaint, if allowed, would open the entire issue which has already been set at rest in the decree passed in the said suit. This Court, therefore, finds that the application for amendment filed by the petitioner/appellant is an outcome of malafide and would cause serious prejudice to the opposite party. Hence, prayer of the applicant is dismissed. The present application stands disposed of which after the needful be tagged with main case file.” 5. This Court is of the considered view that there is no infirmity in the order that has been passed by the learned Appellate Court while dismissing the application. Admittedly, the 4 application herein has been filed at the appellate stage. It is not the case of the petitioner that the proposed amendments were based on developments which took place during the pendency of the appeal. In fact, the intent of the petitioner in terms of the application filed under Order 6 Rule 17 was that it wanted to introduce another Power of Attorney therein i.e., Power of Attorney dated 05.04.2004 thus expanding the scope of the Civil Suit and alleging that the subsequent sale was bad as it was on account of the GPA dated 05.04.2004, which was a manufactured GPA. The Civil Suit itself was filed in the year 2009, meaning thereby that this GPA already existed when the Civil Suit was filed. The reason given in the application why this amendment could not be incorporated earlier as already observed hereinabove is inadvertence. In terms of the provisions of Order 6 Rule 17 of the Civil Procedure Code, the Court may allow such amendments as may be necessary for the purpose of the adjudication of the case at any stage, however, in terms of the proviso added to the said provisions after the 2002 amendment, in case an amendment is proposed after the commencement of the trial, then, the party praying for amendment has to 5 demonstrate due diligence. It is a settled law that negligence is anti-thesis to due diligence. Herein the contention of the petitioner is that on account of the negligence on his part, the proposed amendment could not be incorporated earlier. In light of the statutory provision, until and unless ‘due diligence’ is demonstrated by a party, the Court shall not allow an amendment after the commencement of the trial, denial thereof by the learned Appellate Court cannot be faulted with. 6. Recently, Hon’ble Supreme Court in (2022) 16 Supreme Court Cases 1, Life Insurance Corporation of India versus Sanjeev Builders Private Limited and another has been pleased to reiterate that where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Herein also, the proposed amendment changes the nature of the suit as also the cause of action as now the sale was being intended to be assailed on the basis of the Power of Attorney dated 05.04.2004, which is a totally new cause of action and foreign to the case set up in the plaint, because there was no whisper of this attorney earlier at 6 any stage during the pendency of the Civil Suit and as already observed hereinabove the application was only filed during the pendency of the appeal. Apparently and evidently the intent of filing the application was just to fill up the lacuna in the case and the same can’t be done under Order 6 Rule 17. This provision can only be exercised in the interest of justice which has to be taken into consideration from the perspective of both the parties which are before the Court. 7. Accordingly, in the light of above observations, as this Court does not find any merit in this petition, the same is dismissed. Pending miscellaneous applications, if any, also stand disposed of. (Ajay Mohan Goel) Judge September 11, 2025 (Vinod)