The High Court of Himachal Pradesh upheld the trial court’s refusal to allow an amendment of the written statement after the commencement of trial, reinforcing the strict application of Order VI Rule 17 of the CPC and the due-diligence requirement.
Background & Facts
The Dispute
The respondents (plaintiffs) are owners of a three-storied building, known as New Building, situated at Shankli, Station Ward, Bara Shimla. The land, comprising 135 square yards and 5 square feet, was purchased by the late Dharam Paul Sood through a registered sale deed dated 03.11.1976. After his death, the plaintiffs inherited the property. The first floor was licensed to the petitioner, Bharat Bhushan Sood, by his brother Dharam Paul Sood in 1986, without any monetary consideration and on a terminable licence basis. The petitioner later constructed unauthorised extensions on the joint ancestral land and refused to vacate the first floor, prompting the plaintiffs to file a suit for possession, damages, mesne profits and a permanent injunction.
Key Facts
- Land purchase: Sale deed dated 03.11.1976.
- Construction of building: Commenced in 1986.
- Licence to petitioner: Granted in 1986 for the entire first floor, terminable at will.
- Unauthorised construction: Alleged by plaintiffs, carried out by petitioner on joint family land.
- Suit filed: 05.07.2021 for possession, damages of Rs.1,12,000 and mesne profits.
- Written statement filed by petitioner: 20.09.2021.
- Trial commenced: 2022; issues framed on 28.09.2022.
- Application for amendment of written statement: Filed in 2024, seeking insertion of a paragraph on the existence of a Hindu Undivided Family (HUF) and the role of Dharam Paul Sood as Karta.
- Order dismissing amendment: Dated 06.03.2026 by the Senior Civil Judge, Shimla.
- Petition under Article 227: Filed and decided on 20.08.2026.
Procedural History
- 03.11.1976: Registered sale deed executed.
- 1986: Building constructed; licence granted to petitioner.
- 05.07.2021: Plaintiffs filed suit for possession and damages.
- 20.09.2021: Petitioner filed written statement.
- 28.09.2022: Issues framed by trial court.
- 2022: Trial commenced; evidence recorded.
- 2024: Petitioner filed application to amend written statement.
- 06.03.2026: Senior Civil Judge dismissed amendment application.
- 20.08.2026: High Court dismissed petition under Article 227, affirming the trial court’s order.
Relief Sought
The petitioner sought permission to amend the written statement to include a plea that the land formed part of a HUF and that Dharam Paul Sood was the Karta, contending that the amendment was necessary for a proper determination of the issues.
The Legal Issue
Whether an amendment to the written statement filed after the commencement of trial can be permitted under Order VI Rule 17 of the Code of Civil Procedure, 1908, when the applicant fails to demonstrate that the amendment could not have been raised despite due diligence.
Arguments Presented
For the Petitioner
The petitioner argued that the amendment was merely clarificatory, did not prejudice the respondents, and was essential to establish the existence of a HUF and the role of Dharam Paul Sood as Karta, which would affect the ownership and licence analysis. He contended that the trial court’s refusal was erroneous and that the amendment should be allowed to aid the Court in determining the real point of controversy.
For the Respondents
The respondents maintained that the amendment was belated, introduced no new fact, merely reiterated content already present in the written statement, and was filed to delay the proceedings. They emphasized the proviso to Order VI Rule 17, which bars amendment after trial commencement unless the applicant shows that, despite due diligence, the matter could not have been raised earlier. They relied on precedents such as Salem Advocate Bar Association v. Union of India, M. Revanna v. Anjanamma, and Vijay Hathising Shah v. Gita Devi to demonstrate that the amendment must be rejected.
The Court's Analysis
The Court began by restating the language of Order VI Rule 17 CPC, which empowers the Court to amend pleadings at any stage “as may be just,” but the proviso expressly restricts amendment after the trial has commenced unless the party shows that, in spite of due diligence, the amendment could not have been raised earlier. The Court examined the legislative intent behind the proviso, noting that it was introduced to curb frivolous, dilatory applications.
"The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. The burden is on the person who seeks an amendment after the commencement of the trial to show that in spite of due diligence, such amendment could not have been sought earlier."
The Court then surveyed the leading authorities. In Salem Advocate Bar Association v. Union of India (AIR 2005 SC 3353) the Supreme Court held that the proviso is a mandatory requirement to prevent frivolous applications. Chander Kanta Bansal v. Rajinder Singh Anand (2008) defined “due diligence” as the reasonable diligence expected of a prudent person. M. Revanna v. Anjanamma (2019) placed the burden on the applicant to demonstrate inability to raise the amendment earlier. Vijay Hathising Shah v. Gita Devi (2019) reiterated that an amendment filed when the trial is almost over is untenable.
Applying these principles, the Court observed that the petitioner’s application was filed in 2024, well after the trial had commenced in 2022 and after the issues were framed. The petitioner offered no substantive explanation of why the alleged HUF documents could not have been produced earlier. The only justification was that the documents were obtained in 1983, a fact already known to the Court and not a new ground. The Court found the petitioner’s claim of “due diligence” unsubstantiated; the petitioner had ample opportunity to plead the HUF defence in the original written statement dated 20.09.2021.
The Court further noted that the amendment sought merely to elaborate content already present in the written statement, rendering it repetitive and unnecessary for the determination of the real controversy. Allowing such an amendment would prejudice the respondents by prolonging the suit and would contravene the policy underlying the proviso.
Consequently, the Court concluded that the trial court’s order dismissing the amendment was legally sound and that the High Court should not interfere under its supervisory jurisdiction under Article 227, which is limited to ensuring lower courts act within their authority and not to re-evaluate merits.
The Verdict
The petition under Article 227 was dismissed. The High Court affirmed the Senior Civil Judge’s order dated 06.03.2026 rejecting the amendment of the written statement. No monetary relief or costs were awarded. The petition was dismissed with liberty to the parties to proceed as per the original pleadings.
What This Means For Similar Cases
Amendment After Trial Is Disfavoured
Practitioners must recognise that once trial has commenced, any amendment to pleadings faces a high threshold. The applicant must prove, on a balance of probabilities, that despite exercising reasonable diligence, the amendment could not have been raised earlier.
- File all material facts and documents in the initial pleadings.
- If new evidence emerges after trial commencement, consider filing a fresh suit rather than seeking amendment.
Burden of Proof Lies With the Applicant
The onus to demonstrate lack of due diligence rests squarely on the party seeking amendment. Courts will scrutinise the applicant’s explanation and will not accept vague or speculative reasons.
- Prepare a detailed affidavit outlining why the fact was unavailable earlier.
- Attach contemporaneous evidence (e.g., dated receipts, letters) to substantiate the claim of due diligence.
Supervisory Jurisdiction Is Not Appellate
High Courts exercising power under Article 227 cannot substitute their judgment for that of the subordinate court on merits. They may only intervene where there is a grave dereliction of duty or jurisdictional error.
- Limit arguments to procedural irregularities, not factual disputes.
- Emphasise any breach of natural justice or statutory limits.
