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2025 DAILYLAW 7437 (HP)

RACHPAL SINGH v. GURDEV SINGH

CMPMO/149/2017 · 2025-08-26

Ajay Mohan Goel

body2025

Judgment text

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2025:HHC:28865 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 149 of 2017 Decided on: 26.08.2025 Rachpal Singh and others … Petitioners Versus Gurdev Singh and others … Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes ___________________________________________________________________ For the petitioners : Mr. Karan Singh Kanwar, Advocate. For the respondents : Mr. Praveen Chandel, Advocate. Ajay Mohan Goel, Judge (Oral) By way of this petition filed under Article 227 of the Constitution of India, the petitioners have assailed the order passed by learned Trial Court, in terms whereof, an application filed under Order VI, Rule 17 of the Code of Civil Procedure by the respondents herein, who are plaintiffs before the learned Trial Court, has been allowed. 2. Brief facts necessary for the adjudication of this petition are that a suit for permanent prohibitory injunction has been filed by the plaintiffs (respondents herein) against the defendants, praying for the following reliefs:- “It is therefore prayed that a decree for permanent prohibitory injunction restraining the defendants from destroying the 3 meter wide and 303 meters long path, 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:28865 causing any obstruction in the free ingress and egress of the plaintiffs through the said path shown by red colour in the spot map annexure A which is the part of khasra no 262/138 from their houses situated in khasra no 259/138 shown by yellow colour in spot map annexure A situated in mauza Shivpur Tehsil Paonta Sahib Distt. Sirmour HP themselves or through their family members, agents or servants in any manner what so eve with cost of the suit may kindly be passed in favour of the plaintiff and against the defendants. AND, OR any other relief which the Ld. Court deems fit be also granted.” 3. During the pendency of the said suit, before framing of the Issues, an application was filed by the plaintiffs under Order VI, Rule 17 of the Code of Civil Procedure, seeking amendment in the plaint. Copy of the application is on record as Annexure P-6. It was averred in the application that the applicants and other persons were co-sharers in Khasra No. 138, measuring 35-2 bighas and other khasra numbers situated in mauza Shivpur, Tehsil Poanta Sahib and in Khasra No. 10, which is now Khasra No. 188/10, situated in mauza Akalgarh, Tehsil Poanta Sahib, District Sirmaur, H.P. The land of Khasra No. 188/10 of mauza Akalgarh and land denoted by Khasra No. 138 of mauza Shivpur, were adjoining. The land of Khasra No. 188/10 abutted HPPWD road, leading from 3 2025:HHC:28865 Poanta Sahib to village Bangran. The applicants, in the year 1985, constructed their residential houses, cow sheds etc. on Khasra No. 138, adjoining to north boundary of Khasra No. 138 and adjoining to Forest land of Government of Himachal Pradesh. There was a 3 meter wide path originating from HPPWD road in mauja akalgarh, which passes through Khasra No. 188/10 of mauza Akalgarh and through Khasra No. 138 to the houses of the plaintiffs, which path was 303 meters in length and 3 meters in width upon khasra No. 138. It was further averred in the application that on the basis of a private arrangement amongst the co-sharers, the applicants/ plaintiffs constructed their residential houses adjoining to the said path and since then, the applicants are using the said pathway for egress and ingress to their houses, openly, peacefully and without any interference from the respondents or any other person. It was further averred in the application that on 10.06.2013, the defendants got their land of Khasra No. 262/138 demarcated from the Field Kanungo and thereafter, the defendants started claiming that the land of path of the applicants is a part of the land of Khasra No. 262/138 belonging to the defendants. The applicants, in order to protect their path, have filed a civil suit for permanent prohibitory injunction against the respondents on the ground that they are using the said path openly and peacefully since 1985 and for 4 2025:HHC:28865 restraining the respondents from destroying the existence of the path and from causing any interference in the free ingress and egress of the applicants in the said path. The applicants have made detailed pleadings that path is in existence openly since 1985 and the applicants/plaintiffs and respondents/defendants are in separate possession, however, inadvertently, applicants failed to seek the relief of declaration that the applicants have perfected their right to use the path under the easement by way of prescription and thus, in order to seek proper relief and to fully adjudicate the rights of the parties, a necessity has arisen to amend the plaint. In this backdrop, they prayed in the application that plaintiffs be allowed to incorporate the following amendments in the plaint:- “a. In line no 1 of the title of the suit after the word 'for' and before the word 'permanent propose to add the word "declaration and" b. In line no 8 of para no 4 after the word "." proposes to add and since then the plaintiffs are using the said openly and peacefully to the knowledge of path defendants' c. In line no 3 of para no 5 after the word "." Proposes to add 'and also the plaintiffs have perfected their right to use the path by way of easement of prescription' d. In line no 9 of para no 9 after the word "." Proposes to add 'and the plaintiffs are using the said path since 1985 5 2025:HHC:28865 when they constructed their house openly and peacefully to the knowledge of the defendants and have perfected their right of easement by prescription' e. In line no 2 of para no 13 proposes to add and the value of the suit for the relief of declaration is Rs. 198 and a fixed court fee of Rs. 98 has been paid on the plaint' f. In line no. 1 of the prayer clause after 'that' and before the word 'a' proposes to add "a decree for declaration to the effect that the plaintiffs are entitled to use the 3 meter wide and 303 meter long path without any obstruction in the free ingress and egress of the plaintiffs through the said path shown by red colour in the spot map annexure A which is the part of khasra no 262/138 from their houses situated in khasra no 259/138 shown by yellow colour in spot map annexure A situated in mauza Shivpur Tehsil Paonta Sahib Distt Sirmour HP on the basis of right of easement by prescription with consequential relief of" 4. In terms of the impugned order, learned Trial Court has allowed the application by holding as under:- “9. I have heard learned Counsel for the parties and have gone through the case file very carefully. We may quickly go through the provision as contained in Order 6 Rule 17 CPC. "Amendment of Pleadings.-- The Court may at any stage of the proceedings allow 6 2025:HHC:28865 either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question 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." 10. The true import of this provision is that the Court shall allow all such amendments which are necessary for the purpose of determining the real question in controversy between the parties. In the present application amendments as sought by the applicants are necessary for the adjudication of all the disputes and claims inter se the parties and it will also save the parties from multiplicity litigation. No prejudice is going to be caused to the respondents as the suit is at initial stage and the trial has not commenced yet. The contention of the respondents that the amendment sought will entirely change the suit is not sustainable because it will lead to the Court to decide the real questions in controversy between the parties. However, the delay on the part of the applicants in moving the application at belated stage after two and half years can be adequately 7 2025:HHC:28865 compensated by way of cost of Rs.1,000/- to be paid by the applicants to the respondents. Hence, the application is allowed. It stands disposed off. Be tagged with main case file after due registration. Amended plaint is already on record and now to come up for filing of written statement to the amended plaint on 27.10.2016.” 5. Learned Counsel for the petitioners has argued that the impugned order is not sustainable in the eyes of law for more than one reasons. He submitted that learned Trial Court has erred in not appreciating that the proposed amendments were nothing but a complete somersault from the earlier stand with which the plaintiffs had approached the Court and the effect of the application having been allowed by the learned Trial Court is that now completely a new case has been allowed to be set up by the learned Trial Court, prejudicing the rights of the present petitioners. Learned Counsel drew the attention of the Court to the averments made in the plaint, copy whereof is appended with the petition as Annexure P-2 and by referring to paras 2 to 4 thereof, he submitted that the case, as was put forth by the plaintiffs in the plaint, was that on the basis of private arrangement among the co-sharers, the plaintiffs were/are cultivating the land on one side of the path in question in khasra No. 138, which was being shown by khasra No. 261/138 in the spot map Annexure –A and defendants were/are cultivating the land on 8 2025:HHC:28865 the other side of the path in khasra No. 138, now shown by Khasra No.262/138 and defendants have also constructed their residential houses adjoining to the houses of the plaintiffs as described in the spot map Annexure–A. Learned Counsel further submitted that in para-3 of the plaint, it was categorically stated by the plaintiffs that the defendants got the joint land of khasra No. 138 and other khasra numbers of mauza Shivpur, Tehsil Poanta Sahib, partitioned in the year 1988 and in said partition, agricultural land of khasra No. 138/6 and land of houses of the plaintiffs of khasra No. 138/4 (now described as khasra no. 261/238 and 259/138 in the jamabandi for the year 2010-11) was allotted to the plaintiffs and land of khasra number 138/7 (now described as khasra No. 262/138 in the jamabandi for the year 2010-11) was allotted to the defendants. In para-4 of the plaint, it was specifically mentioned that the plaintiffs and defendants were cultivating the land separately on the basis of arrangement amongst the co-sharers and path shown in red colour in the spot map was made at that time in the land of the share of the plaintiffs for egress and ingress of the plaintiffs and since then, the plaintiffs are using the said path for egress and ingress openly, peacefully and without any interference from the defendants or any other person. Learned Counsel also referred to the replication filed to the written statement in general and para-4 9 2025:HHC:28865 thereof in particular and submitted that it was specifically mentioned therein by the plaintiffs that pathway in question was a private path of the plaintiffs but on account of good relations, the defendants were using the said path at the time of ploughing the land, for harvesting the crops and for carrying their tractors etc. with the consent of the plaintiffs. Learned Counsel thus submitted that it was evident and apparent from the tone and tenor of the pleadings of the plaintiffs that their case was that path in question was a private path of theirs, which was constructed on their land itself and defendants were having permissive use thereof with the consent of the plaintiffs. However, in the application filed under Order VI, Rule 17 of the Code of Civil Procedure, a completely different version was firstly portrayed by mentioning therein that the path in issue was being used openly and peacefully by the plaintiffs since 1985, without making a single averment in the application, as was there in the plaint, that the path in issue was a private path of the plaintiffs. In this backdrop by trying to portray that the contention raised by the plaintiffs was that the path was being used as a matter of right by the plaintiffs, a new case/story was concocted for the grant of permission to amend the plaint and learned Trial Court also without any due application of mind and without appreciating the ill-intent of the plaintiffs, in seeking the amendment in the plaint, allowed the 10 2025:HHC:28865 same in a mechanical manner. 6. Learned Counsel by taking the Court through the impugned order pointed out that a perusal thereof demonstrates that the order which otherwise comprises of 10 paras, incidentally does not contain any reasoning. Paras 1 to 8 narrate the respective contentions of the parties, para-9 quotes the provisions of Order VI, Rule 17 of the Code of Civil Procedure and in para-10, all that is mentioned by the learned Court is that the true import of Order VI, Rule 17 of the Code of Civil Procedure is that all amendments which are necessary for the purpose of determining the real question in controversy between the parties are to be allowed and as in the case in hand, the amendments as sought are necessary for the adjudication of all the disputes and claims between the parties, therefore, the same was being allowed to avoid the multiplicity of litigation. 7. Learned Counsel submitted this is no reasoning in the eye of law and none of the contentions raised by the petitioners herein have been taken care of in terms of the impugned order. Accordingly, he prayed that as the impugned order is per se bad in the eye of law, the same be dismissed. 8. On the other hand, Mr. Praveen Chandel, learned Counsel for the respondents herein submitted that a perusal of the 11 2025:HHC:28865 complaint demonstrates that a complete case was culled out by the plaintiffs therein with regard to the factum of the path in issue being used by the plaintiffs since the year 1985, without any interference etc and as by inadvertence, the relief of declaration was not prayed for in the plaint, the application was filed seeking amendment only to the effect that as there were already complete pleadings in the plaint, on the basis of which, the plaintiffs were indeed entitled also for the decree of declaration, as was being sought by way of the proposed amendment, there was no infirmity in the order passed by the learned Trial Court in allowing the application. He further submitted that taking into consideration the fact that the amendments otherwise does not change the nature of the suit and as the amendment was allowed before the stage of trial, the impugned order calls for no interference. Learned Counsel has also relied upon the judgment passed by Hon’ble Supreme Court of India in Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and another, (2022) 16 Supreme Court Cases 1, and submitted that in terms of the said judgment, all amendments which are necessary for the purpose of adjudication of the lis have to be allowed and as per him, as the prayer made by the applicants, strictly fell within the parameters laid down by Hon’ble Supreme Court in abovementioned judgment, the order passed by learned 12 2025:HHC:28865 Trial Court, in terms whereof, the amendments in the plaint were allowed, called for no interference. 9. I have heard learned Counsel for the parties and also gone through impugned orders as well as other documents on record. 10. Before referring to the factual controversy involved in this petition, this Court would like to dwell upon the judgment of Hon’ble Supreme Court in Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and another (supra), wherein Hon’ble Supreme Court has laid down parameters with regard to the incorporation of the amendments in terms of the provisions of Order VI, Rule 17 of the Code of Civil Procedure. These parameters are culled in para 71 of the judgment, which is being quoted herein below:- “71. Our final conclusions may be summed up thus: 71.1. Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 1 CPC is, thus, misconceived and hence negatived. 71.2. 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 13 2025:HHC:28865 mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI, Rule 17 of the CPC. 71.3 The prayer for amendment is to be allowed 71.3.1. if the amendment is required for effective and proper adjudication of the controversy between the parties, and 71.3.2. To avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and (c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). 71.4 A prayer for amendment is generally required to be allowed unless 71.4.1. By the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, 71.4.2. The amendment changes the nature of the suit, 71.4.3. The prayer for amendment is malafide, or 71.4.4. By the amendment, the other side loses a valid defence. 14 2025:HHC:28865 71.5 In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. 71.6.Where the amendment would enable the court to pin- pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. 71.7. Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation. 71.8. Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. 71.9. Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. 71.10 Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. 71.11. Where the amendment is sought before commencement of trial, the court is required to be liberal in its 15 2025:HHC:28865 approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi40) ” 11. In terms of the judgment of the Hon’ble Supreme Court, the prayer for amendment is to be allowed if the amendment is required for effective and proper adjudication of the controversy, to avoid multiplicity of litigation, provided the amendment does not result in injustice to the other side and the party seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side or it does not raise a time-barred claim, where prayer for amendment is generally required to be allowed, unless by the amendment, a time-barred claim is sought to be introduced, or where the amendment changes the nature of the suit or where the prayer for amendment is malafide or where the other side loses a valid defence. Hon’ble Supreme Court has also held that in dealing with a prayer for amendment of the pleadings, the Court should avoid a hyper-technical approach and is 16 2025:HHC:28865 ordinarily required to be liberal especially where the opposite party can be compensated by costs. Hon’ble Supreme Court has also held that where the amendment would enable the Court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the same should be allowed and where the amendment merely sought to introduce an additional or a new approach without introducing a time-barred cause of action is liable to be allowed even after expiry of limitation. Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint and delay in applying for amendment alone is not a ground to disallow the prayer. Hon’ble Supreme Court has also held that where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation is framed separately for decision. Thereafter, in para 71.10, Hon’ble Supreme Court has held that where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed and where, the amendment sought is only with respect to the relief in the plaint and is predicated on facts, which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. 12. Coming back to the facts of this case, what the Court has to see is as to whether the proposed amendment sought by the 17 2025:HHC:28865 plaintiffs, which has been allowed by the learned Trial Court, is hit by para 71.10 of the judgment of Hon’ble Supreme Court (supra) or not and whether it is protected by 71.11. 13. In terms of the original suit filed by the plaintiffs, the case as has been culled out by the plaintiffs is that the plaintiffs, defendants and certain other persons were co-sharers of the land mentioned in para-1 of the plaint on the basis of a private arrangement among the co-sharers, the plaintiffs were and are cultivating the land on side of aforesaid path in Khasra No. 138, shown by 261/138 in spot map Annexure–A and defendants were cultivating the land on the other side of the path, on Khasra No. 138, i.e. presently Khasra No. 262/138. In terms of the averments made in the plaint as well as replication, the path in issue was made in the year 1985 in the land of the share of the plaintiffs for egress and ingress of the plaintiffs and since then, the plaintiffs are using said path for egress and ingress openly, peacefully and without any interference from the defendants or any other person. It is also the case of the plaintiffs that the path in question was a private path of the plaintiffs but on account of good relations, the defendants were using said path at the time of framing the land and harvesting the crops but with the consent of the plaintiffs. Thus, as per the contents of the plaint, at the cost of repetition, the path in 18 2025:HHC:28865 issue was existing/constructed in the land of the share of the plaintiffs for egress and ingress of the plaintiffs. It is on the basis of said pleadings that the path was on the land owned by the plaintiffs, a decree for permanent prohibitory injunction was prayed for restraining the defendants from destroying 03 meters wide and 303 meters long path, causing any obstruction in the free egress and ingress of the plaintiffs to the said land. 14. Now in this backdrop, if one peruses the application filed under Order VI, Rule 17 of the Code of Civil Procedure, a perusal thereof demonstrates that what is mentioned in the application is not that the path in issue was there under the ownership of the plaintiffs, having been constructed upon the land owned by the plaintiffs but it was mentioned that the suit was filed for permanent prohibitory injunction on the ground that the plaintiffs were using said path openly, peacefully since 1985 but inadvertently in the civil suit, the plaintiffs failed to seek the relief of declaration to the effect that the plaintiffs have perfected their right to use the path under the easement by way of prescription. This was a completely new version as easement right is claimed on third person’s property. Not only this, the proposed amendments are prayed for in the title of the suit and besides this, in paras 4, 5, 9 and 13 of the plaint alongwith relief clause. In terms of the proposed 19 2025:HHC:28865 amendments, the prayer was to incorporate the factum of the path being used by the plaintiffs openly, peacefully to the knowledge of the defendants and that the plaintiffs have perfected their right to use the path by way of easement of prescription and that the plaintiffs were using said path since 1985, when they constructed their houses on the suit land openly and peacefully to the knowledge of the defendants and have perfected their right to use the path by way of easement of prescription. In this backdrop, the amendment prayed for in the relief clause was that the plaintiffs be allowed to amend the plaint by incorporating the relief seeking a decree for declaration to the effect that the plaintiffs were entitled to use the 3 meters wide and 303 meters long path without any obstruction in the free ingress and egress of the plaintiffs through said path shown by red colour on the spot map Annexure –A. 15. It is thus evident from the averments made in the plaint as compared to the averments made in application filed under Order VI, Rule 17 of the Code of Civil Procedure that there was a paradigm shift in the stand of the plaintiffs vis-à-vis the cause. In terms of the plaint, the cause was illegal interference of the defendants upon the path being used by the plaintiffs which was there on land possessed by the plaintiff, whereas now in terms of the application filed under Order VI, Rule 17 of the Code of Civil Procedure, the case being put 20 2025:HHC:28865 forth was that the path was being used peacefully since 1985 and the applicants had perfected their right to use the path under the easement by way of prescription. Meaning thereby that the path was on the property of the defendants. According to this Court, the amendment which was prayed for and which has been allowed by the learned Trial Court, has now enabled the plaintiff to set up an entirely new case, foreign to the case set up in the plaint. This is not permissible in terms of the judgment of the Hon’ble Supreme Court, referred to herein above, wherein it has been categorically mentioned that where amendment changes the nature of the suit or the cause of action, so as to set an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. The proposed amendment obviously is foreign to the case earlier set up in the plaint and as a result of the said amendment being allowed by the learned Trial Court, the plaintiffs now have been allowed to put up an entirely new case which is foreign to the case earlier set up by the plaintiffs. Not only this, the amendment obviously would cause irreparable loss to the petitioners and the petitioners of the advantage which it had secured in the light of the pleadings in the original plaint. This extremely important aspect of the matter has been ignored by the learned Trial Court while passing the impugned order and further there is merit in the contention of learned Counsel 21 2025:HHC:28865 for the petitioner that the order otherwise was passed without any due application of mind by firstly simply referring to the respective contentions of the parties and thereafter, in a mundane manner stating in the order that the proposed amendments were necessary for the adjudication of the suit and no prejudice would be caused to the other party as the case was at the initial stage etc. 16. Accordingly, in view of above observations, as in the considered view of this Court, the impugned order is not sustainable in the eyes of law, the petition succeeds and order dated 19.08.2016, passed by learned Trial Court in application filed under Order VI, Rule 17 of the Code of Civil Procedure is set aside. The petition stands disposed of in above terms, so also pending miscellaneous application(s), if any. (Ajay Mohan Goel) Judge August 26, 2025 (narender)