2025:HHC:27403 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.66/2021 Date of Decision: 13th August, 2025. Sado Deen and Anr. .....Petitioners Versus M/s Wave Hygiene Product through its proprietor ….Respondent Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Petitioners: Mr. Karan Singh Kanwar, Advocate. For the Respondent: Mr. Sandeep Chauhan, Advocate. Bipin Chander Negi, Judge (oral). By way of the present petition, a challenge has been laid to order dated 07.01.2020, passed by the learned District Judge, Nahan, District Sirmaur, HP in Civil Appeal No.7-CA/13 of 2019, whereby an application filed under Order 6 Rule 17 CPC by the present petitioner, seeking amendment of plaint, has been disallowed by the First Appellate Court. 2. Heard counsel for the parties and perused the pleadings and documents appended along with the present petition. 3. The present petitioners were the plaintiffs before the learned trial Court. The petitioners filed a suit for recovery. The suit filed for recovery was of Rs.8,71,940/-. In the suit it was alleged that the petitioners had sold land to the present respondent for a sum of Rs.2,18,90,000/-. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 2025:HHC:27403 It was alleged in the suit that a sum of Rs.2,10,95,500/- stood received, as sale consideration from the respondent by the present petitioners, in pursuance to the agreement to sell. 4. Other than the aforesaid, it was averred in the plaint that insofar as access to the property was concerned, the present petitioners by way of a gift deed made in favour of the Special Area Development Authority (hereinafter referred as SADA) had provided access to the suit land to the present respondent. Mutation of the gift was stated to have been made on 05.10.2012. Balance sale consideration of Rs.8,71,940/- was to be paid according to the petitioners, after execution of the aforesaid gift deed. 5. Per contra respondent by way of filing a written statement had contended that the agreement to sale, in the case at hand, which was duly registered with the Sub Registrar Nahan was dated 24.03.2009, which was for a sum of Rs.2,09,94,500/- only. Once the entire sale consideration had been received by the petitioners that the sale deed was entered into inter se the parties on 06.10.2009. Insofar as the path to the suit land was concerned, it was averred in the written statement that one M/s Shiv Shakti Rolling Mill through its proprietor Sh. 3 2025:HHC:27403 Ashwani Kumar had gifted the land in favour of the State of Himachal Pradesh, through Member Secretary SADA, Trilokpur, Tehsil Nahan. The same is used as a path and it adjoins the respondent’s land. 6. Based on the aforesaid, following issues were framed:- “1. Whether the plaintiffs are entitled to a decree for recovery of ₹8,71,940/- along with interest from the defendant, as prayed for? ...OPP 2. Whether the suit of the plaintiff is not maintainable, as alleged? ...OPD 3. Whether the plaintiff has no cause of action to file the present suit, as alleged? ...OPD 4. Whether the suit is bad for non-joinder of necessary parties, as alleged? 5. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? ...OPD 6. Whether the suit is barred by limitation? ...OPD 7. Whether the plaintiffs have not approached the Court with clean hands, if so its effect? ...OPD 8. Whether this Court has no jurisdiction to entertain and decide the present suit? ...OPD 9. Relief.” 7. After a protracted trial, vide judgment dated 14.11.2018, the suit filed by the plaintiffs was dismissed. Feeling aggrieved of the dismissal, an appeal was preferred before the First Appellate Court, wherein during qua pendency of the appeal, an application for amendment of the plaint before the trial Court was filed by the present petitioners. 8. In the application filed for amendment, it has been averred that on 24.03.2009 two agreements had been 4 2025:HHC:27403 entered into between the parties, showing the sale consideration of Rs.2,18,90,000/- and Rs.2,09,94,500/-. It is further submitted in the said application that inadvertently the fact regarding providing of path could not be explained in the plaint. As per the petitioners, vide the second unregistered agreement of sale dated 24.03.2009, the respondent had agreed to purchase the suit land along with a path for consideration of Rs.2,18,90,000/-. 9. According to the petitioners, the path in question finds mention in Ex.P-X i.e. sale deed dated 06.10.2009. Further in the amendment sought, it is stated that the sale qua the path could not be executed, because no permission in this regard had been obtained from the Government of Himachal Pradesh. 10. In the aforesaid facts and attending circumstances and keeping in view the proviso to Order 6 Rule 17, the learned Appellate Court rejected the amendment. The suit had been filed on 11.07.2013 and was dismissed on 14.11.2018. It is thereafter that at the appellate stage that the amendment was sought to be made. Hence, in the aforesaid facts and attending circumstances, according to the Appellate Court in seeking permission to amend their plaint, the petitioners had shown complete lack of due diligence. 5 2025:HHC:27403 11. Order 6 Rule 17 reads as follows: “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 shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commences, 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.” 12. With a view to shorten the litigation and speed up the trial of cases Rule 17 was omitted by amending Act 46 of 1999. This rule had been on the statute for ages and there was hardly a suit or proceeding where this provision had not been used. That was the reason it evoked much controversy leading to protest all over the country. Thereafter, the rule was restored in its original form by amending Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to some extent. 13. The proviso limits the power to allow amendment after the commencement of trial but grants discretion to the court to allow amendment if it feels that the party could not have raised the matter before the commencement of trial in spite of due diligence. 14. The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent 6 2025:HHC:27403 application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (Eighth Edition), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs. (See 2008 (5) SCC 117, Chander Kanta Bansal Vs. Rajinder Singh Anand). 15. An Advocate representing a party must engage in due diligence to determine that the representations made in the pleadings on behalf of the party are factually accurate and sufficient. Similarly, a party seeking to use the adjudicatory mechanism to attain an anticipatory relief must also show due diligence. As in seeking relief stemming out of a claim, the party must exercise due diligence and it is a requirement, which cannot be 7 2025:HHC:27403 dispensed with. In fact, in the case at hand, the petitioner who got prepared the plaint, signed and verified, the plaint has not shown due diligence at all. I see no reason to differ with the view taken by the First Appellate Court. 16. Even otherwise, the present petition has been preferred under Article 227 of the Constitution of India. This Court has a restricted and limited jurisdiction to interfere under the correctional jurisdiction vested in it in terms of Article 227 of the Constitution of India, except to set right a grave dereliction of duty or flagrant abuse or violation of fundamental principle of law or justice, miscarriage of justice, un-reasonable conclusion and perversity. 17. Besides the aforesaid, in a supervisory jurisdiction reviewing or re-weighing evidence, substituting conclusions, correcting every error of fact or even a legal flaw when the final finding is justified or can be supported is not permissible. (See Sadhana Lodh vs. National Insurance Co. Ltd. & another, (2003)3 SCC 524, and Garment Craft vs. Prakash Chand Goel, (2022)4 SCC 181). 18. In the case at hand, for the reasons stated here-in- above, I am of the considered view that no ground is made 8 2025:HHC:27403 out in the present petition for invoking the jurisdiction of this Court under Article 227 of the Constitution of India. 19. In view of above terms, I see no reason interfere in the impugned order, therefore, the present petition is dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of. (Bipin Chander Negi) Judge 13th August, 2025 (Gaurav Rawat)