2025:HHC:16080 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No.10 of 2025 Reserved on:16.05.2025 Decided on: 27.05.2025 Purshottam Singh ….Petitioner Versus Amaro & others ...Respondents Coram Hon’ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting? Yes For the petitioner: Mr. Nimish Gupta, Advocate. For the respondents: Mr. Ajay Kumar, Senior Advocate with Mr. Rohit, Advocate, for respondent No.1. Satyen Vaidya, Judge By way of this petition, the petitioner has assailed order dated 21.11.2024, passed by Learned Civil Judge, Dalhousie, District Chamba in Civil Suit No.99 of 2015, whereby the application of the petitioner for amendment of written statement has been dismissed. 2. Respondent No.1 (hereinafter referred to as “plaintiff”) has filed Civil Suit No.99 of 2015 against the petitioner (hereinafter referred to as “defendant”) for the relief of declaration, possession and permanent prohibitory injunction. Subject matter of the suit is a house, a store and a cowshed on ‘Abadi Deh’ land 2 2025:HHC:16080 comprised in Khata Khatauni No.79 min/100 min, Khasra No.750/454, measuring 04-03-00 bighas, situated at Mauja Kalan, Pargana Hobar, Tehsil Bhatiyat, District Chamba, H.P. ( for short, “the suit land”). 3. Respondents No.2 to 13 have been impleaded as proforma defendants in the suit. 4. Plaintiff is seeking declaration that he along with proforma defendants is entitled to inherit the suit land being legal heirs of late Smt. Suhago, who is stated to have died intestate and issueless. The defendant is alleged to be in unauthorized possession of the suit land, hence decree for possession has also been claimed. Further, a prayer has been made for decree of permanent prohibitory injunction to restrain defendant from changing the nature of suit land. 5. As per plaintiff, the suit land was owned by one Shri Jeeto, who was predecessor-in-interest of plaintiff and proforma defendants. Dharmo was the eldest son of Jeeto. He was married to Suhago. Dharmo had died issueless and thereafter Suhago had inherited his estate. 6. It is alleged that in the year 2000, the defendant got executed a gift deed in his favour from Suhago of some properties, but the suit land was not included therein. 3 2025:HHC:16080 7. The defendant was stated to be in possession of the suit land on the strength of a decree dated 31.12.2009 passed in his favour in Civil Suit No.20 of 2005 under Section 6 of the Specific Relief Act. On the above premise, the defendant is alleged to be possessing the suit land without any right, whereas the plaintiff has claimed title to the suit land along with proforma defendants being heirs of Suhago. 8. In the written statement of defendant No.1, it has been submitted that the defendant was in possession of the suit land till life time of Suhago thereafter he was illegally dispossessed, which forced him to file a suit for possession under Section 6 of the Specific Relief Act and was in possession in terms of decree dated 31.12.2009. A specific plea has also been raised by defendant to the effect that whatever property was inherited by Suhago from Dharmo, the same was gifted to the defendant. 9. The defendant filed application under Order 6 Rule 17 of the Code of Civil Procedure (for short, “the Code”) for amendment of written statement with a prayer to make additions in para 5 of the written statement in following terms: "Even otherwise Smt. Suhago in her lifetime, had executed a registered Will dated 17.08.2000 regarding her entire property including the suit property in favour of defendant No. 1. The aforesaid 4 2025:HHC:16080 will dated 17.08.2000 was her last and valid Will, however the existence of said Will was not known to the defendant No. 1 and has only came to know about the same in the same in the First week of July, 2024, when the power of attorney holder of defendant No. 1 was cleaning the aforesaid house and found the said Will dated 17.08.2000 in the old documents kept by Smt. Suhago. Since Smt. Suhago had bequeathed the suit property in favour of defendant No.1 and as such the defendant No.1 is owner in possession of the suit property.” 10. The defendant, thus, proposed to set up a plea of having title over the suit property under the ‘Will’ dated 17.08.2000 executed by Suhago. The defendant rendered an explanation that he was not aware about the existence of ‘Will’ till the first week of July 2024, when the attorney of defendant while cleaning the house found ‘Will’ dated 17.08.2000 in old documents kept by Suhago. In reply to the application for amendment, the plaintiff stated that the defendant had not made any mention about the existence of Will in his earlier suit filed under Section 6 of the Act, nor had he claimed any title. It was also averred that the defendant was in possession of the suit land since 2010 on the strength of decree dated 31.12.2009 and hence, it could not be believed that the Will was found in July 2024 in the manner as alleged by the defendant. Another 5 2025:HHC:16080 objection taken by the plaintiff was that the nature of suit will be changed in case the amendment was allowed. 11. Learned trial Court has rejected the prayer of the defendant on the grounds firstly that the application was belated as the suit was filed in the year 2015 and secondly, the pleas raised by the defendant regarding finding of ‘Will’ only in July 2024 and ignorance about existence of ‘Will’ till such date has been doubted. Learned trial Court further held that the amendment if allowed will amount to allowing the defendant to take a U-turn in his defence, which ultimately will change the nature of suit and will end up in a de-novo trial. 12. I have heard learned counsel for the parties and have also gone through the record carefully. 13. Mr. Nimish Gupta, learned counsel for the defendant, contended that the explanation rendered by defendant in not raising the plea of existence of Will in his favour has been doubted by learned trial Court without there being any material on record. He further submitted that the primary question in issue in the suit filed by the plaintiff relates to the title of the suit land and in such view of the matter, the plea sought to be raised by defendant was absolutely necessary for complete and effective adjudication of the matter in issue. He placed reliance on the judgment passed by Hon’ble Supreme Court on 24.09.2024 in 6 2025:HHC:16080 SLP(C) No.30324 of 2019, titled Dinesh Goyal @ Pappu vs Suman Agarwal (Bindal) & others, 2024 SCC Online SC 2615, to assert that the prime consideration, for adjudication of the prayer for amendment of pleadings, is its necessity for complete and effective adjudication of the controversy between the parties and if it is shown to exist, the delay in seeking amendment or lack of due diligence takes back seat. 14. On the other hand, Mr. Ajay Kumar, learned senior Advocate representing the respondent, has contended that the proviso added to Order 6 Rule 17 of the Code by 2002 amendment is imminent and mandatory. In absence of fulfillment of its requirement by the party seeking amendment, the same cannot be granted. He referred to the contents of the application filed by the defendant for amendment to submit that the defendant had failed to place on record the material and foundational facts to establish that he was prevented from seeking the amendment before commencement of trial by sufficient reasons. Mr. Ajay Kumar, learned Senior Advocate, submitted that initial plea of defendant was that Suhago had gifted her entire property including the suit land to him and now allowing him to take a stand that the suit land was inherited by him under a ‘Will’ would be a total contradictory stand. He further pointed out that the gift deed on which the defendant earlier 7 2025:HHC:16080 placed reliance was executed on 17.08.2000 and was registered on the same date in the office of Sub Registrar, Bhatiyat and the ‘Will’ now sought to be set up by him is also of the same date and allegedly registered in the same office on the same date i.e. 17.08.2000. In this background, it has been submitted that the plea raised by defendant that he was not aware about the ‘Will’ till July 2024 stands completely belied. 15. Indisputably, application for amendment was filed by defendant when the plaintiff had already closed his evidence in affirmative and case was fixed for the evidence of defendant. The application, thus, was filed after commencement of trial bringing the rigors of proviso to Order 6 Rule 17 of the Code into play. 16. In Salem Advocate Bar Association T.N. vs. Union of India, 2005) 6 SCC 344, the Hon’ble Supreme Court has held as under: “26. Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed 8 2025:HHC:16080 after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision.” 17. In Ajendraprasadji N. Pandey and another vs. Swami Keshavprakeshdasji N. and others (2006) 12 SCC 1, the reasons for amending Order 6 Rule 17 of the Code have been explained as under: “43. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless inspite of due diligence, the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order VI Rule 17 was due to the recommendation of the Law Commission since Order 17 as it existed prior to the amendment was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the Amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of Courts and, therefore, by Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recognizing the power of the Court to grant amendment, however, with certain limitation which is contained in the new proviso added to the Rule…..” 9 2025:HHC:16080 18. In Vidyabai and others vs. Padmalatha and another, (2009) 2 SCC 409, the scope of proviso to Order 6 Rule 17 of the Code has been explained as under: “19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.” 19. In M. Revanna vs. Anjanamma (dead) by Legal Representatives and others, (2019) 4 SCC 332, the Hon’ble Supreme Court has held as under: “7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 of the CPC virtually prevents an application for amendment of pleadings from being 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 the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is 10 2025:HHC:16080 on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the Court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.” 20. In Basavaraj vs. Indira and others, (2024) 3 SC 705 again the legal position has been explored as under: “10. The proviso to Order 6 Rule 17 CPC provides 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. In the case in hand, this is not even the pleaded case of respondents No. 1 and 2 before the Trial Court in the application for amendment that due diligence was there at the time of filing of the suit in not seeking relief prayed for by way of amendment. All what was pleaded was oversight. The same cannot be accepted as a ground to allow any amendment in the pleadings at the fag end of the trial especially when admittedly the facts were in knowledge of the respondents No. 1 and 2/plaintiffs.” 11 2025:HHC:16080 21. Thus, from the above exposition of law, the only inference is that after commencement of trial in a suit, the amendment can only be allowed in the pleadings, in case the seeker of the amendment established that despite due diligence he was prevented from seeking amendment before commencement of trial. 22. In order to ascertain the factual position, the record of learned trial Court was requisitioned. It has been found that the document Mark X-1 is a copy of gift deed dated 17.08.2000 executed by Suhago in favour of defendant. It bears the stamp of registration of the office of Sub Registrar, Bhatiyat (Churah), District Chamba. Laxman Singh, President Gram Panchayat Taragarh is the Identifier. Kishan Chand and Girdhari are the witnesses. The purported signatures of defendant are also available on the document. The document is shown to have been registered at Serial No.165 of Book No.2 Volume 1 at page 56, dated 17.08.2000. The original ‘Will’ is also on record as document Mark-B. It is also registered on the same date i.e. 17.08.2000 in the same office. The Identifier and the witnesses are the same. The document is registered at Serial No.21 of Book No.3 Volume 4 at Page 48 on 17.08.2000. It is not the case of defendant that he was not present in the office of Sub Registrar Bhatiyat (Churah) on 17.08.2000 and the document Mark X-1 did 12 2025:HHC:16080 not bear his signatures. That being so, it becomes highly improbable that defendant was unaware about the execution of ‘Will’ by Suhago in his favour. 23. The defendant, in such circumstances, could not raise the plea that he was not aware about the ‘Will’. Hence, due diligence was clearly missing in this case and proviso to Order 6 Rule 17 of the Code stares the defendant at his face. However, in Dinesh Goyal (supra) Hon’ble Supreme Court has taken a different view as under: “13. By way of the amendment, what is sought to be done is, to question the validity of the Will, on the basis of which, the defendant sought to have the suit dismissed, while also expanding the scope of adjudication of the suit to include movable property. It has to be then, demonstrated that – (a) determination of the genuineness of the Will is the necessary course of action in determining the issues inter se the parties; and (b) given the finding of the court below that the application was presented post the commencement of the trial, it could not have been, despite due diligence, presented prior to such commencement. 14. Be that as it may, the overarching Rule is that a liberal approach is to be adopted in consideration of such applications. [See also: Sanjeev Builders (supra); Rakesh Kumar Agarwal v. Rajmala Exports Pvt. Ltd.8; Usha Balasaheb Swami & Ors. v. Kiran Appaso Swami & Ors.9; B.K. Narayana Pillai v. Parmeswaran Pillai & Anr.10] 13 2025:HHC:16080 15. In our considered view, the two aspects required to be demonstrated in accordance with the statutory language in the present facts, do not stand on the same footing. The first issue will necessarily have to weigh over the second.” 24. Thus, it has been held that in case the amendment sought is necessary for adjudication of real matter in controversy between the parties, such factor will over-weigh the delay or the lack of diligence by the party seeking the amendment. 25. In M/s A.P. Electrical Equipment Corporation vs. Tehsildar, 2025 SCC online SC 447, Hon’ble Supreme Court has held as under: “35. If two decisions of this Court appear inconsistent with each other, the High Courts are not to follow one and overlook the other, but should try to reconcile and respect them both and the only way to do so is to adopt the wise suggestion of Lord Halsbury given in Quinn v. Leathern, [1901] A.C. 495 and reiterated by the Privy Council in Punjab Cooperative Bank Ltd. v. Commr. of Income Tax, Lahore AIR 1940 PC 230: “…… every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions, which may be found there, are not intended to be expositions of the whole law, but governed or qualified by the particular facts of the case in which such expressions are to be found.” and follow that decision whose facts appear more in accord with those of the case at hand.” 14 2025:HHC:16080 26. Seeking guidance from M/s A.P. Electrical (supra), I proceed to analyze the factual matrix of the case in hand so as to see its proximity, if any, to the facts of the case in Dinesh Goyal (supra). In the said case the dispute interse the parties was with respect to the title of immovable property. Plaintiff was seeking a share in the property left behind by the predecessor-in-interest of parties Smt. Katoribai. The defendant had prayed for dismissal of the suit on the ground that Smt. Katoribai had executed a Will. The plaintiff, by way of amendment then had sought to challenge the legality of ‘Will’. Learned trial Court had rejected the prayer for amendment, but Hon’ble High Court allowed the prayer. Hon’ble Supreme Court also affirmed the view of Hon’ble High Court. Hon’ble Supreme Court found reasons for allowing the prayer for amendment, despite absence of due diligence on the part of plaintiff, principally on the ground that the amendment was necessary for complete and effective adjudication of the entire matter in controversy between the parties and such consideration would outweigh the absence of due diligence. 27. In the case in hand, as noticed above, the core issue is as to the title of the suit land. More likely than not, the party establishing its title will succeed. Plaintiff is claiming title over the suit land by way of inheritance of Suhago. The defendant, on the other hand, firstly claimed that he had the title under a gift made 15 2025:HHC:16080 in his favour by Suhago and by way of amendment he has set up a ‘Will’ to prove his title. In my considered view, there is no absolute rule that defendant cannot take contradictory pleas in any circumstances. What is prohibited is that the defendant cannot take such a plea by amending the written statement which completely obliterates or takes away an admission made by him in original pleadings. In the backdrop of aforesaid facts, the amendment sought by the defendant is absolutely necessary for complete and effective adjudication of the controversy between the parties. Thus, I find the facts of the case in hand to be close to the facts of case in Dinesh Goyal (supra) and for such reason, I prefer to follow the said precedent. 28. In result, the petition is allowed. Order dated 21.11.2024, passed by Learned Civil Judge, Dalhousie, District Chamba in Civil Suit No.99 of 2015 is set aside. The application of the defendant for amendment of written statement is allowed. 29. The petition is accordingly disposed of along with pending application(s), if any. (Satyen Vaidya) Judge 27th May, 2025 (vt/GR)