Mukesh Kumar Vs Subhash Chand and Ors. — Himachal Pradesh HC (2024) — LawSathi Research

Mukesh Kumar Vs Subhash Chand and Ors. — Himachal Pradesh HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

Issue for consideration

Whether the order dated 21.12.2022 passed by the learned Senior Civil Judge rejecting the petitioner's application for amendment of plaint in CMA No.459-VI-2022 in Civil Suit No.56-1-09 was sustainable, the application having been made after commencement of trial without any reason being shown for the delay.

Court's answer

The reasons for rejecting the amendment application cannot be faulted, because the amendment carried in the Code since 2002 makes it mandatory for a party applying for amendment of pleadings after commencement of trial to satisfy the Court that, despite due diligence, it was precluded from seeking the amendment at the appropriate stage.

Ratio / Principle

In the facts of the instant case, no plausible reason had been shown by the petitioner for omitting to seek amendment of the plaint before the commencement of trial.

Key takeaways

Even otherwise, rejection of the prayer for amendment will not deter the plaintiffs from producing and proving the judgment allegedly passed in their favour in the year 1978 during the course of the trial of the suit, in accordance with law.ratio¶8

Detailed headnote1 paragraphs

Civil Revision – challenge to order dated 21.12.2022 of the learned Senior Civil Judge, Court1, Amb, in CMA No.459-VI-2022 in Civil Suit No.56-1-09, rejecting the plaintiff-petitioner's application for amendment of plaint by insertion of paragraph 2(a) alleging a 1978 decree declaring his predecessor Sh. Sant Ram an occupancy tenant over the suit land – application moved after commencement of trial – held, the amendment carried in the Code since 2002 makes it mandatory for a party seeking amendment of pleadings after commencement of trial to satisfy the Court that, despite due diligence, it was precluded from moving at the appropriate stage; no plausible reason for the omission having been shown, the rejection was upheld – further held, rejection of the amendment will not preclude the plaintiffs from producing and proving the alleged 1978 judgment during trial in accordance with law – petition dismissed, pending miscellaneous applications disposed of.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CR No.18 of 2023 Date of decision: 07.05.2024

Mukesh Kumar ...Petitioner. Versus Subhash Chand & Ors. ...Respondents. Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge . Whether approved for reporting?¹ For the petitioner : Mr. Rajiv Rai, Advocate. For respondent Nos.1 & 2 : Mr. Y.P. Sood, Advocate. For respondent No.3 : Mr. Mukesh Sharma, Advocate

Satyen Vaidya, Judge (Oral):

By way of instant petition, order dated

21.12.2022 passed by the learned Senior Civil Judge, Court1, Amb, in CMA No.459-VI-2022 in Civil Suit No.56-1-09, whereby the application of the petitioner for amendment of plaint has been rejected.

Petitioner and the proforma respondents No.3 to 6

are the original plaintiffs in Civil Suit No.56-1-09 before the learned trial Court. A decree of declaration has been sought by them to the effect that they are continuing in possession

1 Whether reporters of Local Papers may be allowed to see the judgment?

-2-

of the suit land as non-occupancy tenants on payment of rent, and change of revenue entries to the contrary is wrong, illegal, null and void.

By way of amendment, the plaintiffs intended to add paragraph 2(a) after the original paragraph 2 of the plaint by making averments that their predecessor-ininterest, Sh. Sant Ram, had succeeded in a suit filed against the State and a decree, declaring him as an occupancy tenant over the suit land, had been passed in the year 1978.

Learned trial Court has rejected the prayer of the plaintiffs for amending the plaint on the ground that plaintiffs had not shown any reason as to why, the application was not filed before the commencement of trial.

I have heard learned counsel for the parties and have also gone through the record carefully.

The reasons on which the application has been rejected cannot be faulted with, for the reason that the amendment carried in the Code since 2002 makes it mandatory for the party applying for amendment of pleadings, after commencement of trial to satisfy the Court

-3-

that despite due diligence, such party was precluded from seeking amendment at appropriate stage.

In the facts of instant case, no plausible reason had been shown by the petitioner for omission to seek amendment to the plaint before the commencement of trial.

Even otherwise, in my considered view, the rejection of the prayer of plaintiffs for amendment will not be a deterrent for the plaintiffs to produce and prove the judgment allegedly passed in their favour in the year 1978, during the course of the trial of the suit, in accordance with law.

In result, there is no merit in the petition. Accordingly, the same is dismissed, pending miscellaneous application(s), if any, also stands disposed of.

7^th May, 2024 (Pardeep)

(Satyen Vaidya) Judge