Toju Vs Mohan Kalta

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CMPMO No.292 of 2017 Decided on 05^th September, 2025 Toju and others …Petitioners Versus Mohan Kalta …Respondent

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Coram

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Hon’ble Mr. Justice Ajay Mohan Goel, Judge 1Whether approved for reporting?

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For the petitioners : Mr. Sandeep Sharma, Advocate. For the respondent : Mr. Virender Singh Chauhan, Senior Advocate, with Ms. Priti, Advocate.

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Ajay Mohan Goel, Judge (Oral )

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By way of this petition, the petitioners have prayed for the following relief:-

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“It is, therefore, prayed that this petition may kindly be allowed order dated 05.10.2016, passed by learned Civil Judge Jr. Div. Court No.2 Rohru, District Shimla, H.P., in CMA No.162-6 of 2016 under Order 6 Rule 17 and Section 151 of Code of Civil Procedure filed in case No.97-1 of 2013 may kindly be set aside and quashed and the application under Order 6 Rule 17 read with Section 151 of Code of Civil Procedure filed by the petitioners may kindly be directed to be allowed.”

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The petitioners are aggrieved by the order, in terms

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whereof, the application filed by the petitioners under Order 6 Rule 17 of the Civil Procedure Code has been dismissed.

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I have heard learned counsel for the parties and have

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also gone through the impugned order as well as the documents appended with the petition.

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A perusal of the record demonstrates that the respondent herein filed a suit for permanent prohibitory injunction against the petitioners, which suit was filed in the year 2013. Written statement thereto was also filed by the defendants in the month of January, 2014. The application under Order 6 Rule 17 of the CPC seeking amendment of the written statement is dated 22.09.2015. It was mentioned in the application (Annexure P-3) that the plaintiff had filed the Civil Suit with regard to the suit land on concocted facts. In the said case, the counsel who had filed

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the written statement was not properly instructed by the defendants being illiterate and hailing from village. The amendments being sought would help the Court in advising substantial justice to the parties and would also avoid multiplicity

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of litigation and on these basis it was prayed that the party be

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allowed to amend the written statement.

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The application was opposed by the plaintiff.

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In terms of the order under challenge, the application

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has been dismissed by the learned Trial Court by returning the following reasons:-

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“It is clear from the averments made in the application that the plea which the applicants introduce is indeed hopelessly barred. The appropriate remedy which was available to the applicant was to file separate suit for declaring the sale deed in favour of the plaintiff and respondent null and void but as the same being barred by limitation, I am of the opinion that this court would not misuse discretionary jurisdiction to allow the amendments of the written statement to introduce such plea.

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It is also pertinent to mention here that the applicant has also raised such pleas in the counter claim made by him in the suit but it was later withdrawn by him on dated 20.11.2014 without taking the leave/permission of this court to file fresh counter claim. Therefore it seems that by way of amendments of the written statement, the applicant want to introduce the pleas which he has already taken in the counter claim which defendant already had withdrawn. The applicant cannot mislead the court playing hide and seek with the court. What the cannot do directly he do it 16. Before parting with the case it would be apposite to mention here that the Hon'ble Supreme that the Court has time and again observed application for amendment under Order 6 Rule 17 is the most abusive provision of the CPC, ergo, courts shall deal with such matters strictly. In REVAJEETU BUILDERS V/S NARAYANASWAMY & SONS 2009 10 SCC 84

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Hon'ble Supreme Court observed:

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In our considered view, Order VI Rule 17 is one of the important provisions of the CPC, but we have no hesitation in also observing that this is one of the most misused provision of the Code for dragging the proceedings indefinitely, particularly in the Indian courts which are otherwise heavily overburdened with TODAY ne pending cases. All Civil Courts ordinarily have a long list of cases, therefore the Courts are compelled to grant long dates which causes delay in disposal of the cases. The applications for amendment lead to further delay in disposal of the cases.

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[30] It may be pertinent to mention that with a view to avoid delay and to ensure expeditious disposal of suits, Rule 17 was deleted on the recommendation of Justice Malimath Committee by the Code of Civil Procedure (Amendment) because of public uproar, it Act, was 1999 but revived. Justice C.K. Thakker, an eminent former Judge of this Court in his book Procedure on Code of Civil this (2005 Edition) incorporated information while dealing with the object of amendment.

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[31] In a recently published unique, unusual and extremely informative book "Justice, Courts and Delays", the author Arun Mohan, a Senior Advocate of the High Court of Delhi and of this Court, from his vast experience as a Civil Lawyer observed that 80% applications under Rule VI Order 17 are filed with the sole objective of delaying the proceedings, whereas 15% application are filed because lackadaisical approach in the first instance, and 5% applications are those where there is actual need of amendment. His experience revealed that out these 100 applications, 95 applications are allowed and of (even may be less) are rejected. According to him, a need for amendment of pleading should arise in a few cases, and if proper rules with regard to pleadings are put into place, it would be only in rare cases. Therefore, for allowing amendment, it is not just costs, but the delays caused thereby, benefit of

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such delays, the additional costs which had to be incurred by the victim of the amendment. The Court must scientifically evaluate the reasons, purpose and effect of the amendment and all these factors must be taken into consideration while awarding the costs.

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[32] To curtail delay in disposal of cases, in 1999 the Legislation altogether deleted Rule 17 which meant that longer amendment of pleading would no longer have been permissible. But immediately after the deletion there was as widespread uproar and in 2002 Rule 17 was restored, but added a proviso. That proviso applies only after the trial has commenced. Prior to that stage, the situation remains as it was. According to the view of the learned author observed in his book, although the Arun Mohan proviso has improved the position, the fact remains that amendments should be permissible, but only if a sufficient ground therefore is made out, and further, only on stringent terms. To that end, the rule needs to be further tightened."

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Therefore, on the basis of the discussions above, the application is dismissed for the reason stated above. It be registered and tagged the main file. List for compliance of order 10 Rule 1 and 2, order 10 Rule 1 (A to C) read with section 89, order 12 Rule 3(A), order 13 Rule 1, der to order 14 Rule 1 of CPC and consideration on issues cl 25.10.2016.”

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Having carefully gone through the pleadings which are on record as well as the order under challenge, this Court is of the considered view that there is no infirmity in the impugned order. It is a matter of record that the petitioners had filed a counter claim but the same was withdrawn on 20.11.2014 and no liberty was taken by the petitioners at the time of the withdrawal

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of the counter claim, to file a fresh counter claim. It is evident and apparent that the proposed amendments which was sought to be incorporated in the written statement were akin to pleas which were raised in the counter claim and were withdrawn later. These facts are clearly borne out from the record of the case and, therefore, obviously, as the intent of the petitioners was to fill up the lacuna in the written statement, learned Trial Court rightly rejected the application.

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This Court would like to make an observation that the provisions of Order 6 Rule 17 are for advancing the cause of justice, but the same cannot be allowed to be abused or misused by a party.

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In the present case, in the light of the fact that the counter claim filed by the petitioners was withdrawn without liberty and thereafter the same averments were tried to be introduced in the written statement, the application for amendment could not have been allowed so as to enable the petitioners to fill up the lacuna in the written statement and learned Trial Court rightly rejected the same. The contention of the petitioners that earlier the counsel was not properly briefed on

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account of the fact that the petitioners were rustic villagers can also not be accepted, because, it is a matter of record that on the same plea the counter claim was filed and withdrawn. Thus, as

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this Court is satisfied that there is no infirmity in the impugned

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order and further as there is no merit in the present petition, the

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same is dismissed. Pending miscellaneous applications, if any,

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also stand disposed of.

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(Ajay Mohan Goel) Judge September 05, 2025 (Vinod)

Toju v. Mohan Kalta

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Toju v. Mohan Kalta

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