1 2025:HHC:29212 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Civil Revision No.135 of 2006 Reserved on: June 25, 2025 Date of Decision: August 29, 2025 Bhan Singh (deceased) and others ….Petitioners. Versus Thakur Singh & others ..Respondents. Coram: The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting?1 Yes. For the Appellant: Mr.Anand Sharma, Senior Advocate, with Mr.Karan Sharma, Advocate. For the Respondents: Mr.Anup Rattan, Senior Advocate, with M/s Arun Kaushal and Shagun Sharma, Advocates, for respondents No.1, 10(a) to 10(e) and 11. Respondents No.2 to 4, 6 to 8 are ex parte. Respondents No.5 and 9 stand deleted. Respondents No.12 to 16 are ex parte vide order dated 23.10.2017. Respondents No.17 to 19 are ex parte vide order dated 17.03.2025. Vivek Singh Thakur, J. Petitioners, successors-in-interest of original plaintiff, have filed present Revision Petition, by invoking Section 115 of the Code of Civil Procedure, assailing order dated 05.08.2006, passed by Civil Judge (Junior Division) Chamba, District Chamba, H.P., in Civil Suit No.140 of 1998, titled as Bhan Singh vs. Thakur 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:29212 Singh and others, whereby Civil Judge has rejected the application filed by the plaintiff under Order 6 Rule 17 CPC for amendment of the plaint at the arguments stage of the suit. 2. Plaintiff has filed Civil Suit for permanent prohibitory injunction for restraining defendants No.1 to 4 from interfering or changing nature or causing any interference in the suit land; for declaration that plaintiff and proforma defendants No.5 to 7 are owners in possession of the suit land and defendants No.1 to 4 are trying to interfere in the suit premises on the basis of Will dated 18.06.1996, whereas the Will is illegal, null, void and inoperative upon right of the plaintiff and proforma defendants No.5 to 7. 3. Facts, in brief, are that one Bhagat, who was unmarried expired issueless in the month of May 1998. Original plaintiff Bhan Singh claimed that he and proforma defendants No.5 to 7 were Nephews of deceased Bhagat, whereas, proforma defendant No.8 Rajesh Kumar was son of original plaintiff Bhan Singh. Further that Bhagat was confined to bed due to prolonged ailment from 1995 till his last breath in 1998 and he was not competent to execute the Will. However, defendants No.1 to 4, as defendant No.1 Thakur Singh was Member of Legislative Assembly (MLA) and had also remained Parliamentary Secretary to the Himachal Vidhan Sabha, fraudulently fabricated ‘Will’ dated 18.06.1996 which was got attested by defendants No.1 to 4 in collusion with Kahan Singh, Daulat Ram and revenue staff, and after death of Bhagat, suit premises was recorded in 3 2025:HHC:29212 the ownership and possession of defendants No.1 to 4. Whereas, plaintiff and proforma defendants No.5 to 7 are in actual physical possession of the suit land and defendants No.1 to 4 are not entitled to interfere, but they have started interference in the month of August 1998. 4. In response, in written statement, defendants No.1 to 4 contested the plea taken in the plaint, on the ground that plaintiff, deliberately suppressed the material facts that defendants No.1 to 4 are owners in possession of the share of deceased Bhagat and further that, being distant related Nephews of Bhagat, plaintiff and defendants No.5 to 7, who are not real Nephews of Bhagat, are not legal heirs/representatives of deceased Bhagat and defendants No.1 to 4 are entitled to inherit the property of Bhagat on basis of registered Will executed by Bhagat. 5. It has been claimed on behalf of defendants No.1 to 4 that Bhagat was unmarried and, due to old age, was not able to do his day-to-day routine works and defendants No.1 to 4 were looking after, providing Roti, meals and clothing etc. to Bhagat and, in turn thereof, for appreciating and recognizing the services of defendants No.1 to 4 Bhagat, out of happiness, executed a Will dated 18.06.1996 in their favour, which was registered with the Sub Registrar, Bharmaur on 27.06.1996 by completing all codal formalities including signatures of relevant persons. 4 2025:HHC:29212 6. It has also been denied by defendants No. 1 to 4 that Bhagat was suffering from serious ailment since 1995 to 1998 and he was confined to bed till his death. It has been claimed that disputed land is in possession of defendants No.1 to 4 since very long. 7. After completion of pleadings evidence was led by the parties. Thereafter, matter was listed for hearing/final arguments on 31.08.2004. 8. At that stage, plaintiff preferred an application under Order 6 Rule 17 CPC for amendment of the plaint on the date fixed for final hearing, i.e. 31.08.2004. Relevant extract of application filed by the plaintiff under Order 6 Rule 17 CPC reads as under:- “1. That the above mentioned civil suit is fixed for hearing on 31.8.2004 for service of L.Rs of defendant No.2. 2. That both plaintiff and defendants are “GADIES” by tribe and are scheduled Tribes of Tehsil Bharmour. 3. That inspite of due diligence the plaintiff could not have raised the matter before commencement of trial. However the case is not finally adjudicated as yet. 4. That the following words in para No.2-A of the plaint shall be inserted by way of present amendment: “That both parties hail from Tribal area of Tehsil Bharmour and are “Gaddies” by scheduled tribe and defendant No.1 is M.L.A. representing the reserved tribal constituency. The Hindu Succession Act is not applicable to Scheduled Tribes. The pedegree table is enclosed herewith.” 5. That the aforesaid amendment is necessary for the just decision of the case and to settle the controversy between the parties once for all.”” 5 2025:HHC:29212 9. After filing reply to the application by defendants No.1 to 4, the application for amending the plaint was dismissed on 05.08.2006, which is impugned in present petition. 10. Present petition, filed in 2006, remained pending either for want of removing objection or for some other reasons including for deletion or substitution of legal heirs of party(ies) expired during pendency as well as, thereafter, for service of substituted party(ies) . 11. Admittedly application under Order 6 Rule 17 CPC was filed at the stage of final hearing of the suit, whereby one paragraph in the plaint was proposed to be inserted, as recorded supra that both parties belong to tribal area and defendant No.1 had contested election of Legislative Assembly and Hindu Succession Act is not applicable to Scheduled Tribes. 12. According to the plaintiff, amendment was necessary for decision of the case and to settle the controversy between the parties once for all. 13. Civil Judge dismissed the application on the ground that there was no due diligence on the part of defendants No.1 to 4, and after contesting the suit till the date of arguments, plaintiff suddenly proposed for amendment without explaining the cause for not filing the application for amendment, and thus plaintiffs are not entitled for amendment proposed to be carried out and there was inordinate unexplained delay in filing the application for amendment on behalf of the plaintiff as the application has been filed at last stage when case was listed for 6 2025:HHC:29212 final arguments on 31.08.2006, despite the fact that amendment sought to be carried out in the plaint is not a new fact, but was well known to the plaintiff at the time of filing of the suit also, and the amendment so proposed shall change the nature of the suit. 14. Learned counsel for the petitioners, to substantiate prayer to set aside the impugned order, with submissions that provisions of Order 6 Rule 17 CPC provide that amendment can be carried out ‘at any stage’ when it is necessary for the purpose of determining real question in controversy between the parties has placed reliance upon judgments; M/s. Chakreshwari Construction Pvt. Ltd. v. Manohar Lal, (2017) 5 SCC 212; Braham Dass vs. Onkar Chand and another, 2009 (1) Shim. LC 339; Dharam Dass and others vs. Prem Swarup, 2010 (Supp) Him L.R. 2054; M/s Sainsons Pulp & Papers Ltd. and another vs. State Bank of India and others, 2015 (3) Shim. LC 1373; ICICI Lombard General Insurance Comp. Ltd., vs. Smt. Leela Devi & others, 2017(2) Him. L.R. 684; Life Insurance Corporation of India vs. Sanjeev Builders Private Limited & another, 2022 (4) CCC 540; Yatinder Singh vs. Pratap Singh and others, 2023 (2) Shim. LC 1006; and Krishnamoorthy (Died) & others vs. K. Sundaresan & others, 2023 (3) CCC 620. 15. For the discussion hereinafter, I am of the considered opinion that judgments cited by learned counsel for the petitioners are of no help to them. 7 2025:HHC:29212 16. It has been argued that it is an admitted fact that parties hail from a tribal area and are governed by tribal laws and customs and, therefore, amendment proposed to be carried in the plaint is a fact which is necessary for the purpose of determining the real question in controversy between the parties. 17. Provisions of Order 6 Rule 17 CPC read as under:- 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 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.” 18. The Apex Court in Dinesh Goyal alias Pappu vs. Suman Agarwal (Bindal) and others, AIR 2024 SC 4779, has narrated some general principles to be kept in mind for adjudicating the application under Order 6 Rule 17 CPC, which read as under:- “11. At this juncture, before proceeding to the merits of the case, let us consider the law relating to the amendments of pleadings. 11.1 The settled rule is that the Courts should adopt a liberal approach in granting leave to amend pleadings, however, the same cannot be in contravention of the statutory boundaries placed on such power. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das, (2008) 8 SCC 511, it was held as under: “16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant 8 2025:HHC:29212 time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363] which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions : (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. [Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar (1990) 1 SCC 166: (AIROnline 1989 SC 42.]” 11.2 Over the years, through numerous judicial precedents certain factors have been outlined for the application of Order VI Rule 17. Recently, this Court in Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd. & Anr., AIR 2022 SC 4256, after considering numerous precedents in regard to the amendment of pleadings, culled out certain principles:- (i) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC. (ii) In the following scenario such applications should be ordinarily allowed if the amendment is for effective and proper adjudication of the controversy between the parties to avoid multiplicity of proceedings, provided it does not result in injustice to the other side. (iii) Amendments, while generally should be allowed, the same should be disallowed if – (a) By the amendment, the parties seeking amendment does not seek to withdraw any clear 9 2025:HHC:29212 admission made by the party which confers a right on the other side. (b) The amendment does not raise a time-barred claim, resulting in the divesting of the other side of a valuable accrued right (in certain situations) (c) The amendment completely changes the nature of the suit; (d) The prayer for amendment is malafide, (e) By the amendment, the other side should not lose a valid defence. (iv) Some general principles to be kept in mind are – (I) The court should avoid a hyper-technical approach; ordinarily be liberal, especially when the opposite party can be compensated by costs. (II) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint or introduce an additional or a new approach. (III) The amendment should not change the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint.” 19. In Vidyabai and others vs. Padmalatha and another, (2009) 2 SCC 409, the Apex Court has observed as under:- “10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which reads as under: “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.” It is couched in a mandatory form. The court’s jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not 10 2025:HHC:29212 have raised the matter before the commencement of the trial.” 20. In Pandit Malhari Mahale vs. Monika Pandit Mahale and others, (2020) 11 SCC 549, the Apex Court has observed that in absence of finding that in spite of due diligence party could not incorporate amendment before commencement of the trial, amendment is not permissible. 21. In present case, Bhagat was maternal Uncle of defendant No.1 and Bhan Singh is distantly related to Bhagat. The status of parties was well known to each other. It has no where been stated in the application or otherwise that what was the cause which prevented the plaintiff from incorporating averments, proposed to be inserted in the plaint at the arguments stage. Therefore, there is complete lack of explanation that despite due diligence on the part of the plaintiff averments proposed to be added in plaint, cannot be incorporated at the time of filing of the plaint. There is only single line that in spite of due diligence plaintiff could not have raised this issue before the commencement of the trial. 22. Despite having knowledge of the status as well as applicability of laws to the tribal, plaintiff did not incorporate proposed averments in the plaint. No doubt, Rule 17 provides that amendment can be carried out ‘at any time’, however, it is subject to condition, which mandates that in absence of establishing that despite due diligence the issue cannot be raised or averments cannot be made in the plaint, such amendment 11 2025:HHC:29212 cannot be permitted after commencement of trial. It is condition precedent to establish on record in mandatory form that proposed amendment cannot be carried out or incorporated in the plaint before commencement of trial despite due diligence. Words ‘in spite of due diligence’ but without explaining the same, cannot be used as magic words for amendment in pleadings. It is required to be established on record by citing plausible reasons that for such and such reason despite due diligence the averments cannot be incorporated in the pleadings. 23. There is another aspect of the matter. In present case, plaintiff has assailed Will executed by Bhagat devolving suit property upon defendants No.1 to 4. Neither in the original plaint nor in the amendment proposed to be carried out in the plaint, it has been alleged that a person belonging to Tribe Gaddies is not competent to execute a Will of his property or there is any custom inhibiting the right of a person to execute a Will for devolving his property upon some one belonging to the same Tribe as per his desire. Right to execute a Will of property does not devolve upon any person on account of Hindu Succession Act. The society recognizes right of a person to execute a Will since ancient era, however with variation of certain limitations. But in present case, it is not a case that petitioners are proposing to incorporate any averments with respect to such custom, tradition or tribal law. 24. Otherwise also, incorporation of the amendment proposed to be added in the plaint will not be of any help to the 12 2025:HHC:29212 petitioners as there is nothing in proposed amendment to establish that Bhagat was not having any right to execute Will or defendants No.1 to 4 are disentitled from inheriting property of Bhagat in pursuance to Will executed by him. Therefore, proposed amendment is not necessary for the purpose of determining real question in controversy between the parties in present suit. 25. Proposed amendment, in no manner, is related to or relevant to the original pleadings of the plaint. These are entirely different than the pleadings of the original suit. Therefore, incorporation of proposed amendment in the plaint shall change nature of the suit leading the controversy in another direction which has never been raised either in the plaint or otherwise. 26. The words used in Rule 17 “at any time” do not give an absolute right to any party to carry out amendment ‘at any stage’ of the suit, but these words are subject to condition contained in proviso in Order 6 Rule 17 CPC and entire provisions of amendment i.e. Order 6 Rule 17 CPC are to be read together in toto, but not by picking two words out of context. Therefore, submissions of learned counsel for the petitioners, in this regard, are misconceived particularly in given facts and circumstances of the present case. 27. In view of above discussion, there is no merit in the petition and accordingly the petition is dismissed. 13 2025:HHC:29212 28. Parties are directed to appear before the Trial Court on 22.09.2025. 29. Plaintiffs are also directed to take appropriate steps for deletion/substitution of parties expired during pendency. The steps be taken within one month. 30. A copy of this judgment be sent to the Trial Court forthwith. Pending application(s), if any, also stand disposed of. (Vivek Singh Thakur), Judge. August 29, 2025 (Purohit/sanjeev)