2025:HHC:24942 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 488 of 2024 Decided on : 29.07.2025 Mohan Lal …Petitioner Versus Loungu Ram. …Respondent Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?1 For the petitioner : Mr. Ashok Kumar Verma, Advocate. For the respondent : Mr. P.S. Goverdhan, Senior Advocate, with Mr. Rakesh Thakur, Advocate. Ajay Mohan Goel, Judge (Oral) By way of this writ petition, the petitioner has, inter alia, prayed for the following relief:- “It is, therefore, respectfully prayed that present Petition may very kindly be allowed and the impugned order dated 17.06.2024 passed by the Ld. Civil Judge, Court No.3 Mandi, District Mandi in CMA No.970/2022 in Civil Suit No.128 of 2018, titled as Mohal Lal V/s Loungu Ram in may kindly be quashed and set aside and 1Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:24942 application under Order 6 Rule 17 read with section 151 CPC field by the petitioner may kindly be allowed which is necessary in the interest of law, justice, equity and fair play.” 2. The petitioner, who is the plaintiff before the learned Court below, is aggrieved by order dated 17.06.2024, in terms whereof, an application filed by him, under Order VI Rule 17 of the Code of Civil Procedure, seeking amendment in the plaint, has been dismissed, by the learned Court below. 3. Learned counsel for the petitioner has taken the Court through the documents appended with the petition as well as the impugned order and submitted that the impugned order is perverse, for the reason that the learned Court erred in not appreciating that as the amendment was necessary for the adjudication of the main issue between the parties and further, as the amendment was necessitated by developments that took place during the pendency of the Civil Suit, therefore, it was not a case where there was any undue delay on the part of the petitioner in filing the application. He further submitted that the findings returned by the learned Court below that due diligence was not exercised by the petitioner are perverse findings. He 3 2025:HHC:24942 further submitted that, otherwise also, in terms of the law declared by the Hon’ble Supreme Court of India, the Court should be liberal as far as allowing amendments in the pleadings are concerned. Accordingly, he prayed that the petition be allowed and the impugned order be set aside and petitioner be permitted to amend the pleadings. 4. On the other hand, learned Senior Counsel for the respondent defended the order passed by the learned Court below. He submitted that a perusal of the application filed under Order VI, Rule 17 of the Code of Civil Procedure, clearly demonstrates that there is no whisper therein with regard to exercise of due diligence by the petitioner. He submitted that it is the own case of the petitioner that the cause of action accrued in his favour, somewhere after the passing of order dated 18.08.2018, yet the application under Order VI, Rule 17 of the Code of Civil Procedure was filed in the month of August, 2022 and there is no mention in the application as to why it took 4 years for the petitioner to move the application. He further submitted that in terms of the provisions of Order VI, Rule 17 of the Code of Civil Procedure, due diligence has to be 4 2025:HHC:24942 demonstrated by parties before the prayer for amendment of the pleadings can be allowed, for the reason that the provision of Order VI, Rule 17 of the Code of Civil Procedure is not to be invoked at the whims of the parties to the prejudice of the other party, and to improve one's case. Accordingly, he submitted that as there is no perversity in the findings returned by the learned Court below, the petition be dismissed. 5. I have heard learned counsel for the petitioner as well as learned Senior Counsel for the respondent and also carefully gone through the impugned order as well as other documents appended therewith. 6. The suit filed by the petitioner/plaintiff against the respondent/defendant is for permanent prohibitory injunction. The suit was filed in the month of April, 2018. In this suit, application filed by the petitioner under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, was disposed of by the learned Court below, by passing an order in favour of the petitioner on 18.08.2018. Now, in this backdrop, if one peruses the application filed under Order VI, Rule 17 of the Code of Civil Procedure, praying for amendment in the plaint, one finds that it 5 2025:HHC:24942 is inter alia mentioned therein that after the passing of order dated 18.08.2018, the respondent not only continued with the construction work, which was being carried out by him, but also constructed two gates, one small and one big one, at the entrance of the path/road, through which the plaintiff had the approach to his land/property. In this backdrop, the proposed amendment as is reflected in Para 4 of the application was sought, seeking mandatory injunction for the demolition and removal of the said gates, which were constructed by the respondent/defendant after the passing of order dated 18.08.2018. 7. Application filed under Order VI, Rule 17 of the Code of Civil Procedure, is dated 20.08.2022. Except mentioning therein that the construction of the gates was undertaken by the respondent after the passing of order 18.08.2018, nothing is stated therein that when actually the gates were constructed. However, a harmonious reading of the entire application demonstrates that this probably was done by the respondent in and around passing of order 18.08.2018, because it is averred in the application that despite order dated 6 2025:HHC:24942 18.08.2018 being in the knowledge of the respondent, he continued with the construction work and constructed two gates after passing of order dated 18.08.2018. In this backdrop, if one again goes through the application filed under Order VI, Rule 17 of the Code of Civil Procedure, one finds that there is no whisper therein as to why the petitioner approached the Court seeking amendment in the plaint after 4 years and as to what due diligence was exercised by him in this regard from the month of August, 2018. 8. A query was put to the learned counsel for the petitioner yesterday by the Court as to whether the petitioner/plaintiff did file any application under Order XXXIX, Rule 2A of the Code of Civil Procedure, etc. against the respondent for the alleged willful disobedience of the orders passed by the learned Trial Court in the application filed under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure. To this, learned counsel for the petitioner, on instructions, submitted that no such application was filed by the petitioner. 9. A perusal of the order passed by the learned Trial Court demonstrates that the following reasons were assigned 7 2025:HHC:24942 therein for rejecting the application:- “9. Certainly, in the present case, the plaintiff could not have raised the matter of construction of two gates before the commencement of the trial for the simple reason that it is the case of the plaintiff that same has been done after order dated 18.08.2018. The question which is for consideration is whether raising of construction after the commencement of the trial is a considerative factor in deciding the application. The answer is certainly in affirmative for the reason that where the subsequent change has taken place after commencement of trial, they ought to be brought before the Court for determining the real question in controversy and to prevent multiplicity of proceedings. The factum of construction of gates, from the perusal of the report filed in the year 2018, was evidently within the knowledge of the plaintiff. If this fact was within the knowledge of the plaintiff aft the application under Section 151 in CMA No. 421/2018 was allowed vide order dated 18.08.2018 for which the report had been filed on 29.08.2018, the plaintiff could have easily moved the application for amendment at an earlier date rather than waiting for four long years to move the present application. The issues 8 2025:HHC:24942 were framed on 14.01.2020 and there was no reason for the plaintiff to move an application on a subsequent date. 10. The term "due diligence" has been succinctly defined by the Hon'bleBombay High Court in Walchandnagar Industries Limited vs. Indraprastha Developers and Ors 2015 MHLJ 3 786 as under: “Due diligence means careful and persistent application and effort. It means the diligence that a prudent man would exercise in the conduct of his own affairs. Unless the party takes prompt steps, mere action cannot be accepted after the commencement of the trial. The due diligence determines the scope of the party's constructive knowledge of the claim. It is a kind of reasonable investigation, which is necessary before claiming the relief.” 11. Due diligence on part of the plaintiff cannot be said to be proved and therefore, it cannot be said that there is compliance of proviso of Order VI Rule 17 CPC. Certainly, Order VI Rule 17 CPC gives wide power to the Court to permit amendment but the said power is restricted by proviso appended to it. The plaintiff should have been specific to aver as to why the said 9 2025:HHC:24942 amendment was not sought earlier despite knowledge of construction and further, the specific date when the interference was so caused. Vaguely stating that the Construction of gates were made after 18.08.2018 and trying to evade limitation, will not prove due diligence. With this, the application is dismissed. Be disposed of and be tagged with main case file for record.” The reasons assigned in the order are clearly borne out from the record and this Court concurs with the same. 10. Order VI, Rule 17 of the Code of Civil Procedure provides that a Court may, at any stage of the proceedings, allow either party to alter or amend 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 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. 11. It is not in dispute that in the present case, the application seeking amendment in the plaint, was filed by the 10 2025:HHC:24942 plaintiff after the trial commenced. As already mentioned hereinabove, there is no whisper in the application as to what due diligence was exercised by the petitioner in approaching the Court by way of an application filed under Order VI, Rule 17 of the Code of Civil Procedure, because there is no satisfactory explanation as to why the amendment was being sought after almost 4 years from the date of the alleged accrual of the cause of action. In this backdrop, the reasonings given by the learned Trial Court while rejecting the application, obviously, are cogent reasonings, because as the petitioner failed to demonstrate as to what due diligence was exercised by him, learned Trial Court was right in rejecting the application. 12. This Court is of the considered view that the provisions of Order VI, Rule 17 of the Code of Civil Procedure, cannot be invoked at the whims of a party and further though the Courts have to be liberal as far as grant of amendments in pleadings are concerned, but then being liberal, does not means that exercise of due diligence should be put on the back burner by the party, which is approaching the Court, seeking amendment in the pleadings. 11 2025:HHC:24942 13. Reliance placed by the learned counsel for the petitioner on the judgment dated 24.09.2024 of the Hon’ble Supreme Court of India, in Dinesh Goyal alias Pappu Vs. Suman Agarwal (Bindal) and others, 2024 SCC Online SCC 2615, in the considered view of this Court, is of no assistance to the petitioner, for the reason that the adjudication by the Hon’ble Supreme Court in the said case was in the facts involved therein, which is evident from Para 15 of the judgment, in which, the Hon’ble Supreme Court was pleased to inter alia observe that the two aspects required to be demonstrated in accordance with the statutory language “in the present facts”, do not stand on the same footing. Otherwise also, therein the issue was with regard to a Will and it was in said backdrop, that Hon’ble the Supreme Court was pleased to pass the order. 14. However, reverting back to the facts of this case, as obviously the party was sleeping over its rights and it approached the Court after a delay of four years seeking amendment, without demonstrating as to what due diligence was exercised by it, as this Court finds no perversity in the order passed by the learned Court below, this petition is 12 2025:HHC:24942 dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly. (Ajay Mohan Goel) Judge July 29, 2025 (Shivank Thakur)