IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.731/2025 Date of Decision: 05th December, 2025. Nand Lal .....Petitioner Versus Nikka @ Nikku Ram ...Respondent Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Petitioner: Mr. Sanket Sankhyan, Advocate. For the Respondent: Nemo Bipin Chander Negi, Judge (oral). The present petition has been preferred against the impugned order dated 20.09.2025, whereby an application preferred under Order 6 Rule 17 read with Section 151 CPC for amendment of the plaint filed by the present petitioner/plaintiff along with a prayer for arraying certain defendants has been rejected. 2. Heard counsel for the petitioner and perused the impugned order and the documents appended along with the present petition. 3. From a perusal of the suit filed by the present petitioner/plaintiff before the learned trial Court, it is evident that the same had been filed seeking grant of a permanent prohibitory injunction against the respondent. In the suit it was admitted that the suit land is joint, insofar as the parties to the lis are concerned. Further in the suit it has been averred that the present respondent/defendant has started construction over 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 the best portion of the suit land by cutting trees, which existed thereupon. 4. In the written statement filed to the suit, it has been categorically averred that the petitioner/plaintiff has himself raised a huge house and three shops on the suit land. The house of the present respondent/defendant stands raised. Between the two houses of the petitioner and respondent, there exist a vacant land, which belongs to one Sh. Sanjeev Kumar. In front of his house, the present respondent has raised a retaining wall many years ago to protect his house and in order to raise further construction adjacent to his house. At the time of filing the written statement, the construction of two rooms by the present respondent was complete and one lintel was to be put on the same. Shuttering for the had been put in place. 5. In the aforesaid backdrop, an application for amendment of the plaint has been filed. In the application so filed, it has been averred that the suit land was granted to the petitioner/plaintiff as nautor on 05.11.1974 and on 20.11.1981. Qua the same, a patta was issued in favour of the present petitioner/plaintiff. According to the terms and conditions of the patta, there is a clear embargo to transfer any part of the suit land within 15 years of the grant of patta. Hence, according to the petitioner/plaintiff, the transfer of the suit land in favour of the respondent/defendant and one Sh. Chota Ram vide mutation No.528 dated 10.06.1986 is illegal. 3 6. In response to the present application, it has been categorically averred that the transfer of the suit land in the case at hand was done at the behest of the present petitioner/plaintiff, in furtherance whereof mutation No.528 dated 10.06.1986, had been incorporated. Thereafter huge investments have been made by the present respondent thereupon by raising construction. 7. Other than the aforesaid, it has been pointed out that previously an application under Order 23 CPC had been filed by the present petitioner/plaintiff seeking permission to withdraw the suit. In the aforesaid backdrop, the same was dismissed, as no formal defect was stated to have been pointed to the learned trial Court. The said application filed under Order 23 CPC was dismissed vide order dated 12.12.2016. Subsequent thereto, the matter had been posted for recording of the petitioner’s/plaintiff’s evidence on 16.03.2017. 8. The suit in the case at hand was filed in September 2014. As per the averments made in the application under Order 6 Rule 17 CPC, it is evident that the suit land was allowed to the present petitioner, as nautor on 05.11.1974 and 20.11.1981. Transfer of part of the suit land was done by the petitioner/plaintiff in favour of the respondent/defendant and one Sh. Chota Ram. All these facts were well within the knowledge of the present petitioner/plaintiff, when he filed his suit in September 2014. Despite being aware of this only a suit seeking permanent prohibitory injunction and claiming the 4 respondent/defendant to be a joint owner in the suit land was filed by the present petitioner/plaintiff. 9. In the year 2016, an attempt was made by the petitioner/plaintiff to withdraw his suit by moving an appropriate application under Order 23 CPC. The same was dismissed, vide order dated 02.11.2016, as the trial Court found no formal defect in the suit. Even thereafter, the present petitioner chose not to move an application under Order 6 Rule 17 CPC, till January 2023. At the time, when the application seeking withdrawal on account of the alleged formal defect was dismissed on 02.12.2016, the matter inter se the parties, wherefrom the present proceedings arise, was at the stage of recording of the petitioner’s/plaintiff’s evidence. From the aforesaid facts and attending circumstances, lack of diligence on the part of the present petitioner/plaintiff in moving the present application is writ large. Hence, the condition precedent in terms of the proviso to Order 6 Rule 17 CPC is not fulfilled/satisfied in the case at hand. 10. The learned trial Court has correctly observed that permitting the present application of amendment would fundamentally alter the character of the suit. Even otherwise, the declaration now being sought on the face is time barred. 11. In view of the aforesaid facts and attending circumstances, I see no reason to differ with the view taken by the learned trial Court, therefore, the present petition is 5 dismissed being devoid of merit. Pending miscellaneous application(s), if any, also stand disposed of. (Bipin Chander Negi) Judge 05th December, 2025 (Gaurav Rawat)