2025:HHC:41796 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.384 of 2025 Decided on: 04.12.2025 Duni Chand … Petitioner Versus Rattan Chand & others … Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 ____________________________________________________ _ For the petitioner : Mr. Vikrant Chandel, Advocate. For the respondents : Mr. G.R. Palsra, Advocate, for respondents No.1 (a), 2 (a) to 2 (c) and 7, 8. Respondent No.6 stands deleted vide order dated 11.11.2025. Remaining respondents proceeded ex parte vide order dated 11.09.2025. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioner has challenged order dated 11.04.2025 (Annexure P-4), passed by the Court of learned Additional District Judge, Sundernagar, District Mandi, H.P., in CA No.27 of 2024, Registration No.05 of 2025, in terms whereof, an application filed by the respondents/ plaintiffs, under Order 6, Rule 17 of the Civil Procedure Code for amendment of the plaint, stands allowed. 2. Brief facts necessary for the adjudication of the present petition are that contesting respondents/ plaintiffs filed a Suit 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:41796 against present petitioners as well as other defendants, to the effect that the plaintiffs and proforma defendants were joint owners in possession of the suit land. The revenue entries in the name of defendant No.1 were wrong because plaintiffs and proforma defendants had become owners of the suit land on the basis of a Will executed by late Thania on 24.12.2003. It was also the case of the defendants that a will dated 05.06.2003 was procured by defendant No.1 by conniving with the attesting witnesses scribed and, thereafter, with further connivance of Sub-Registrar Sundernagar, he got the same registered which was liable to be declared as null and void. Accordingly, a decree for declaration for declaring the plaintiffs and proforma defendants to be owners in possession of the suit land was prayed for and it was also prayed that Will dated 05.06.2003 and mutation attested on the basis ofsaid Will dated 29.09.2008, be declared null and void. The Suit was resisted by the contesting respondents therein who urged that the Will executed by deceased- Thunia on 05.06.2003 was a legal and valid will and the mutation attested on the basis thereof was also valid in law. It was also the stand of the contesting respondents that Will dated 24.12.2003 being propounded by the plaintiffs was wrong and false one and Will dated 05.06.2003 was the last Will of deceased- Thunia. The Civil Suit was dismissed by the learned Trial Court in 3 2025:HHC:41796 terms of judgment and decree dated 16.05.2024. Feeling aggrieved, the plaintiffs preferred an appeal. 3. During the pendency of appeal, an application was filed under Order 6, Rule 17 of the Civil Procedure Code, praying for amendment of the plaint, inter alia, on the ground that after Notices were issued in the appeal to respondents No.2 and 3, they purportedly visited Sundernagar on 06.11.2024 and inquired about the case from the plaintiffs and informed them that Thuia had revoked Will dated 05.06.2003 on 19.06.2003 (wrongly mentioned as 19.06.2023 in the application) by executing a Revocation Deed dated 19.06.2003. Accordingly, an amendment was prayed to the effect that as Thunia had revoked Will dated 05.06.2003, executed in favour of contesting defendants on 19.06.2003, therefore, Mutation No.1337, dated 29.09.2008, attested in their favour on 06.11.2024 was illegal, null and void. 4. Learned Appellate Court in terms of the impugned order has allowed the application by holding that defendants No.2 to 5, the legal heirs of deceased Thunia were proceeded against ex parte at initial stage in the Civil Suit and as they were not associated with the Suit, therefore, cannot be inferred that revocation of Will was within the knowledge of the plaintiffs. It was further observed by the learned Court that otherwise also, the amendment was necessary for 4 2025:HHC:41796 the purpose of the adjudication of the case and on these grounds, the learned Court below has allowed the application. 5. Learned Counsel for the petitioner vehemently argued that the impugned order is not sustainable in the eyes of law, for the reason that the learned Trial Court erred in not appreciating that due-diligence, was not demonstrated in the application and the bald assertion of the plaintiffs that they were not aware of alleged revocation of the Will earlier was accepted by the learned Appellate Court without there being any cogent material on record to substantiate this fact. Learned Counsel submitted that in the reply filed to the application under Order 6, Rule 17 of the Civil Procedure Code, it was specifically pleaded by the present petitioner that the so called alleged revocation was manipulated by the plaintiffs, yet the application was allowed by the learned Court below without appreciating that in the absence of due-diligence being pleaded and proved, the application could not have been allowed. 6. On the other hand, learned Counsel for the contesting respondents/plaintiffs argued that the plaintiffs were not having knowledge of the fact that the Will executed by Thunia in favour of defendant No.1 on 05.06.2003, was revoked on 19.06.2003 and this fact came in their knowledge prior to 06.11.2024 and thereafter, as the application was filed without any delay, due-diligence was 5 2025:HHC:41796 exercised by the plaintiffs and in this light of the matter, there is no infirmity in the impugned order. 7. I have heard learned Counsel for the parties and have also carefully gone through the order under challenge. 8. As I have already observed hereinabove, the Suit was filed by the plaintiffs in the year 2009 and the same was dismissed in the month of May, 2024. 9. In terms of the averments made in the application filed under Order 6, Rule 17 of the Civil Procedure Code before the learned Appellate Court, the stand of the applicants therein was that after the issuance of Notice in the appeal respondents No.2 and 3, said respondents inquired about the matter from the plaintiffs and informed the plaintiffs that the Will which was made by Thunia in favour of defendant No.1 on 05.06.2003, was revoked on 19.06.2003. If this contention of the plaintiffs is to be believed, same demonstrates that the legal representatives or legal heirs of late Thunia were in touch with the plaintiffs. Though, in terms of the record of the case, they were proceeded against ex parte before the learned Trial Court, however, they were impleaded therein as contesting respondents. It is no body’s case that these respondents were residing in some far flung areas. The averments made in the application are not substantiated by any cogent material on record, 6 2025:HHC:41796 not even in the shape of some affidavit filed by legal heirs of late Shri Thunia, to substantiate the contentions made therein, yet the learned Appellate Court took the averments made in the application to be gospel truth without appreciating that in terms of the amendments carried out in the provisions of Order 6, Rule 17 of the Civil Procedure Code in the year 2002, the prayer for amendment of pleading could have been gone into by the Court only if ‘due- diligence’ is demonstrated. 10. This Court is of the considered view that in the present case, the plaintiffs failed to demonstrate ‘due-diligence’ and as ‘due- diligence’ is a condition precedent, more so, in light of the fact that the amendment was prayed at the appellate stage after 15 years as from the date of the institution of the Suit, the application was liable to be dismissed. As this extremely important aspect of the matter was not appreciated by the learned Court below, therefore, the impugned order dated 11.04.2025 is not sustainable in the eyes of law. Even otherwise, learned Appellate Court erred in not appreciating that as a result of proposed amendment having been allowed, the entire nature of the Suit has been changed and this is not permissible under Order 6, Rule 17 of Civil Procedure Code. Learned Trial Court erred in not appreciating that the impugned order has resulted in grave injustice to the present petitioner, as on 7 2025:HHC:41796 account of the application for amendment of the plaint having been allowed at the appellate stage, not only the entire nature of the Suit has been changed, but even the same upsets the entire foundation of judgment of the learned Trial Court. 11. Accordingly, this petition is allowed and order dated 11.04.2025 (Annexure P-4) passed by the Court of learned Additional District Judge, Sundernagar, District Mandi, H.P., in CA No.27 of 2024, Regn. No.05 of 2025, is quashed and set aside. The petition stands disposed of, so also the pending miscellaneous application(s), if any. (Ajay Mohan Goel) Judge December 04, 2025 (Rishi)