2025:HHC:33060 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 74 of 2022 Reserved on : 17.09.2025 Decided on : 23.09.2025 Smt. Shiv Devi (deceased) through her legal heirs and others …Petitioners Versus Smt. Padma Devi (deceased) through her legal heirs and others …Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?1 For the petitioners : Mr. Vipin Pandi, Advocate. For the respondents : M/s N.K. Bhalla and Chehak, Advocates, for respondents No.1(a), 1(d) to 1(f). Respondents No.2 to 6 exparte. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioner has assailed order dated 05.01.202, passed by learned Senior Civil Judge, Solan, in Civil Suit No. 77/1 of 2009, in case titled Shiv Devi (deceased) through her legal heirs Vs. Padma Devi, in terms whereof, the application filed by the petitioners herein, under Order VI, Rule 17 of the Civil Procedure Code (hereinafter 1Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:33060 referred to as ‘CPC’), was dismissed. 2. Brief facts necessary for the adjudication of this petition are that a suit for declaration and injunction was filed by the plaintiffs titled as Shiv Dei and others Vs. Padma Devi and others. The plaintiffs are praying for a decree that they are owners in possession as co-sharers having 5 out of 40 shares in the suit land and revenue entries showing plaintiffs as mortgagers and defendants as mortgages, are wrong and illegal, as the suit land has been redeemed. It has been further prayed in the suit that defendants be restrained from changing the nature or creating any change etc. to the prejudice of the plaintiffs upon the suit land and an alternative prayer has been made that the plaintiffs are entitled for a decree of possession by way of redemption of the above mentioned land, i.e. their share in the suit land on payment of Rs.300/- or any such amount as may be adjudicated by the Court. 3. According to the plaintiffs, the mortgaged land was share in joint property and at the time of mortgage, it was agreed that whenever mortgage money of Rs. 300/- was paid back by the mortgagers, the mortgages will redeem the 3 2025:HHC:33060 mortgaged land and would get the revenue entries changed. On 15.06.1980, predecessor-in-interest of the plaintiffs, made payment of the mortgaged amount and a writing was also prepared on the said date and after the redemption of the land, the plaintiffs were owners in possession of the suit land. In September, 2008, on obtaining certain jamabandies, the plaintiffs came to know that revenue entries qua the suit land were wrong and illegal as despite redemption of the mortgaged land, the suit land was still being shown as mortgaged. 4. The defendants have taken the stand that the suit was time barred. According to them, the predecessor-in-interest of the plaintiffs namely Tulsi Ram was not in possession of suit property nor was cultivating the same. He sold his share for an amount of Rs. 310/-. This was an absolute oral sale in favour of Mast Ram and Anant Ram. The suit was filed taking benefit of wrong revenue entries etc. 5. The suit was filed in the year 2009 and written statement was also filed in the year 2009 in which it was mentioned that the suit land was neither mortgaged for an amount of Rs.300/- nor redeemed by making the payment of 4 2025:HHC:33060 Rs. 300/-. It was further mentioned in the written statement that the land was sold by Tulsi Ram to Mast Ram and Anant Ram, for an amount of Rs.310/- by way of an oral sale. Counter claim was also filed by the plaintiffs. 6. During the pendency of the Civil Suit, an application under Order VI, Rule 17 of the CPC was filed on 27.06.2019, in which it was mentioned that applicants were illiterate simpleton village ladies and now it had transpired that there is a possibility that the suit land was mortgaged for an amount of Rs.310/- and, therefore, in order to avoid any technical complications, the applicants intend to include plea that even if the land is found to be mortgaged for Rs. 310/-, even then the applicants were ready to make good the payment of said amount and accordingly, prayer was made to incorporate amendments as mentioned earlier. 7. The application was, inter alia, resisted on the ground that the plaintiff in her statement had specifically stated that the mortgaged amount was Rs.300/-. Plaintiffs had also pleaded the mortgaged amount of Rs. 300/- in the plaint and in these circumstances, if the plaintiffs were allowed to 5 2025:HHC:33060 incorporate the amendment, it would amount to change in the cause of action and amount to withdrawal of the admission by the plaintiffs that the mortgaged amount was Rs. 300/-. 8. Learned Trial Court in terms of the impugned order, has rejected the application by assigning the following reasons:- “7. Plaintiff intend to amend the plaint by adding para no. 5a that redemption amount was Rs.310/- which plaintiff and applicant are ready and willing to pay, but plaintiff has failed to prove that when this plea of amount of Rs.310/- was taken long back by the defendant in the year 2009, when they filed their written statement alongwith counter claim, why not at that time only amendment was made in the plaint itself. It is not explained on record that why from 2009 till 2019 for the period of more than 10 years, plaintiff kept awaiting and filed this application at the fag end of the case. No doubt as per the provisions of Order. 6 Rule 17 CPC an application for amendment of the pleadings can be filed at any stage even after the commencement of the trial where the party proposing to amend the pleadings proves that despite due diligence the said facts cannot 6 2025:HHC:33060 be brought into the knowledge of the court at the initial stage, but provision of Order 6 Rule 17 CPC specifically states that parties intend to amend the plaint should prove its due diligence. 8. Plaintiff though took the plea that they are rustic illiterate of village, and remained under the impression that mortgaged amount was Rs.300/- and not Rs.310/-, but this plea of illiteracy and being rustic cannot be considered as they were being duly represented by counsel who only not filed present suit but also filed written statement to the counter claim wherein it was categorically denied that amount was not Rs 310/- Plaintiff have failed to prove their due diligence in amending the pleadings and almost after the delay of 10 years without giving any justified reason that why amendment was not made earlier, plaintiff cannot be allowed to amend the pleadings. Otherwise also entire case of the plaintiff rests upon this mortgaged amount of Rs.300/- which they have averred that was paid by their predecessor in interest Anant Ram on 15.6.1980, making amendment by adding para no. 5a will amount to withdrawing this admission so made by them which will give rise to new cause of action and will entirely change 7 2025:HHC:33060 the nature of the suit. 9. Hence, in the light of these facts, amendment sought to be made in the plaint cannot be allowed on the ground that application has been filed at very belated stage without any justified reason and further when the same is going to change the nature of the suit land by withdrawal of the admission made by plaintiff. Hence application is dismissed. Application stand disposed of. Be tagged with main case.” 9. Having heard learned counsel for the parties and having carefully gone through the impugned order as well as other documents on record, this Court is of the considered view that the impugned order does not suffers from any infirmity. 10. It is a matter of record as has been observed by me hereinabove also that in the written statement filed in the year 2009 itself, a specific stand was taken by the defendants that the suit land was sold by Tulsi Ram to Mast Ram and Anant Ram, for an amount of Rs.310/-. Therefore, this stand of the defendants was in the knowledge of the plaintiffs since the year 2009. Yet it took them 10 years to file an application and that too after the statements of the plaintiffs were recorded in which 8 2025:HHC:33060 it was reiterated by the plaintiffs that the mortgaged amount was Rs.300/-. In this backdrop, when obviously the intent of the plaintiffs by way of the proposed amendment was to withdraw the admission made in the plaint as well as their depositions, the rejection of the application by the learned Trial Court, cannot be faulted with. As the application was filed after the commencement of the trial, the plaintiffs were to demonstrate due diligence and a perusal of the application filed under Order VI, Rule 17 of the CPC demonstrates that there is not even a single word therein as to why the proposed amendments could not be incorporated at the time of the filing of the plaint or sometime thereafter. The plea of the plaintiffs being illiterate villagers does not hold waters for the reasons assigned by the learned Trial Court. Provision of Order VI, Rule 17 of the CPC, can not be allowed to be used by a party to fill up the lacuna in its case, as obviously was the intent of the plaintiffs. 11. Therefore, in this backdrop, the dismissal of the application by the learned Trial Court being sustainable in the facts of the case, this petition being devoid of any merit, is dismissed. Pending miscellaneous application(s), if any, also 9 2025:HHC:33060 stand disposed of accordingly. (Ajay Mohan Goel) Judge September 23, 2025 (Shivank Thakur)