IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No.316 of 2021 Decided on: 28.08.2025 ____________________________________________________ Vinod Kumar ……….. petitioner Versus Manohar Lal ……….respondent ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? 1 For the petitioner : M/s Rupesh Kumar, Parv Sharma & Shekhar Badola, Advocates. For the respondent : Mr. Mohit Jaitak, Advocate (through video conferencing) with Mr. Kunal Mehta, Advocate. ____________________________________________________ Bipin Chander Negi, Judge (oral) The present petition has been preferred against the impugned order dated 1.12.2021, passed by the trial Court, whereby an application filed under Order 6 Rule 17 read with Section 151 of the CPC for amendment of the plaint filed on behalf of the present petitioner has been rejected. 2. Heard counsel for the parties. Perused the impugned order and the pleadings appended alongwith the present petition. 3. At the very outset, it would be appropriate to mention that the application under Order 6 Rule 17 read with Section 151 of the CPC, which was dismissed by the impugned order dated 1.12.2021 was filed at a stage, when arguments had concluded in 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 the matter and the case has been reserved for pronouncement of judgment. The petitioner was the plaintiff before the trial Court. The petitioner has filed a suit for partition qua properties detailed therein. A detailed written statement to the same had been filed by the present respondent. 4. In the written statement so filed, a specific objection qua partial partition being not permissible had been taken. In the replication filed, plea of partial partition being raised by the present respondent was categorically denied by the present petitioner. 5. Subsequent thereto, the suit progressed, issues were framed, evidence recorded and the matter thereafter was posted for arguments. Once arguments were concluded, it is then that the present application was filed. By way of the application filed seeking amendment of the plaint, the petitioner sought to incorporate an old house within the Lal Lakeer which had not been included by the present petitioner in the suit filed. 6. The trial Court has rejected the application on account of the fact that despite being made aware of the fact that the suit filed by the present petitioner was one for a partial partition, no steps for rectification of the suit were taken till the matter was finally argued and reserved for judgment. Other than the aforesaid, the trial Court was of the view that allowing the same would cause prejudice to the present respondent. 3 7. In the case at hand, it is evident that after the filing of the suit, the present respondent in the written statement had taken a categorical objection with respect to partial partition. The said objection was categorically denied in the replication filed. Thereafter till conclusion of final arguments, no steps were taken to incorporate any other property previously not included in the suit. 8. 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.” 9. 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. 4 10. 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 could not have raised the matter before the commencement of trial in spite of due diligence. 11. 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). 12. An Advocate representing a party must engage in due diligence to determine that the representations made in the pleadings on behalf of the party are factually accurate and 5 sufficient. Similarly, a party seeking to use the adjudicatory mechanism to attain an anticipatory relief must also show due diligence. In fact, in the case at hand, the petitioner who got prepared the plaint, signed and verified, the plaint has not shown due diligence at all. More so when after filing of written statement, by the respondent, the petitioner was made aware of the defect in the suit based on a plea of partial partition. I see no reason to differ with the view taken by the trial Court with respect to want of diligence on the part of the petitioner. 13. Besides the aforesaid, I see no reason to disagree with the trial Court when the trial Court records that on account of the present amendment, prejudice shall be caused to the respondent. In my considered view, the present amendment would result in a denial of a valid defence to the respondent in the case at hand. 14. In view of the aforesaid, I see no infirmity in the impugned order passed by the learned Trial Court dated 01.12.2021. Therefore, the present petition is dismissed alongwith pending miscellaneous, applications, if any. Parties are directed to appear before the trial Court on 9th September, 2025. (Bipin Chander Negi) Judge August 28, 2025 tarun