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Lal Bahadur v. Satish Rathour

Himachal Pradesh HC7 Apr 2025CMPMO/339/2016

Case brief

AI extract

What is this about?

High Court of Himachal Pradesh, Shimla; CMPMO No. 339 of 2016; decided 07.04.2025; Bipin Chander Negi, Judge. Lal Bahadur v. Dr. Satish Rathour and another — amendment of written statement after commencement of trial; proviso to Order 6 Rule 17 (2002 amendment); due diligence requirement; constructive knowledge; withdrawal of admissions; new defence; impugned order dated 10.06.2015 in CMA No. 42-6 of 2015 (Civil Judge JD, Shimla) quashed; citations: (2019) 4 SCC 332 M. Revanna v. Anjanamma; (2012) 2 SCC 300 J. Samuel v. Gattu Mahesh; AIR (2005) Himachal Pradesh 21 Jeet Ram Kishore v. Sunder Singh.

What did the court decide?

Impugned order dated 10.06.2015 set aside/quashed; pending miscellaneous application(s) disposed of; parties directed to appear before the trial Court on 22.04.2025. ¶23

Lal Bahadur Vs Satish Rathour — Himachal Pradesh HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Impugned order dated 10.06.2015 set aside/quashed; pending miscellaneous application(s) disposed of; parties directed to appear before the trial Court on 22.04.2025.

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Issue for consideration

Whether the order dated 10.06.2015 passed by the learned Civil Judge (Junior Division), Court No.7, Shimla, allowing the respondent's application under Order 6 Rule 17 for amendment of the written statement after commencement of trial, should be upheld or set aside. +1 more

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Court's answer

The entire object of the 2002 amendment to Order 6 Rule 17 is to stall filing of applications for amending pleadings subsequent to commencement of trial, to avoid surprises, ensure parties have sufficient knowledge of the other's case, and check delays.

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Ratio / Principle

After commencement of trial, an application for amendment can be allowed only if the Court concludes that despite due diligence the parties could not have raised the matter before commencement of trial; the proviso to Order 6 Rule 17 curtails the earlier absolute discretion to allow amendment at any stage.

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Key takeaways

Amendment of pleadings cannot be claimed as a matter of right.ratio¶13
The term 'due diligence' is specifically used in the Code as the test for exercising discretion on post-commencement amendment applications, and it determines the scope of a party's constructive knowledge and is critical to the outcome of the suit.ratio¶17
A bare assertion in the amendment application that despite due diligence the amendment could not be incorporated earlier is not enough to satisfy the proviso to Order 6 Rule 17 as it stands after 2002.ratio

Detailed headnote1 paragraphs

CMPMO against order dated 10.06.2015 (CMA No. 42-6 of 2015, Civil Judge (Junior Division) Court No.7, Shimla) allowing the respondent's application under Order 6 Rule 17 to amend his written statement after commencement of trial (framing of issues). Held: the 2002 proviso to Order 6 Rule 17 bars post-commencement amendments unless the Court concludes that despite due diligence the matter could not have been raised before trial began; amendment is not a matter of right; 'due diligence' is the statutory test determining a party's constructive knowledge; a bare assertion of due diligence in the application is insufficient; the proposed amendments raised a wholly new defence, surprised the other side, and withdrew prior admissions. Petition allowed; impugned order set aside/quashed; parties directed to appear before the trial Court on 22.04.2025. Relied on M. Revanna v. Anjanamma, (2019) 4 SCC 332; J. Samuel v. Gattu Mahesh, (2012) 2 SCC 300; Jeet Ram Kishore v. Sunder Singh, AIR (2005) Himachal Pradesh 21.

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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CMPMO No. 339 of 2016 Decided on: 07.04.2025

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____________________________________________________ Lal Bahadur ……….. petitioner Versus Dr. Satish Rathour and another ……….respondent ____________________________________________________ Coram:

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Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting?¹

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For the petitioner	:	Mr. Parmod Advocate.	Singh	Thakur,
For the respondent	:	Mr. Sunil Chauh	an, Advo	cate.
_________________ Bipin Chander Negi,	______ Judge	_______________ (oral)	_______	_______

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The present petition has been filed laying a challenge to impugned order 10.06.2015 passed in CMA No. 42-6 of 2015 titled as Lal Bahadur vs. Dr. Satish Rathour and another by learned Civil Judge (Junior Division), Court No.7, District Shimla H.P., whereby an application under Order 6 Rule 17 filed by the present respondent for amendment of written statement has been allowed.

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Heard counsel for the parties. Perused the pleadings.

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Admittedly in the case at hand, the amendment now

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sought to be made in the written statement is being made after trial has commenced i.e. framing of issues.

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1 Whether the reporters of the local papers may be allowed to see the judgment?

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The entire object of the amendment to Order 6 Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement to trial, to avoid surprises and that the parties had sufficient knowledge of other’s case. It also helps checking the delays in filing the applications.

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Amendment cannot be claimed as a matter of right. The proviso to Order 6 Rule 17 virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced. After the commencement of trial, an application for amendment can only be allowed once the Court comes to the conclusion that inspite of due diligence, the parties could not have raised the matter before the commencement of the trial. In view of the proviso to Order 6 Rule 17, the absolute discretion to allow amendment, at any stage, therefore stands curtailed. In this regard, a reference can be made to (2019) 4 SCC 332 titled as M. Revanna vs. Anjanamma (dead) by legal representatives

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and others .

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Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term “due

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diligence” is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial. The term “due diligence” determines the scope of a party’s constructive knowledge, claim and is very critical to the outcome of the suit. In this respect, a reference can be made to (2012) 2 SCC 300 titled as J. Samuel and others vs. Gattu Mahesh and others.

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All that is stated in the application under Order 6 Rule 17 is that despite due diligence, amendment as is being sought to be made could not be incorporated at the time of filing written statement. Simply stating so in the application filed, seeking amendment is not enough to enable the Court to consider the application in the light of the amended provisions. Specifically proviso to Order 6 Rule 17, as it stands after 2002. In this respect, a reference can be made to AIR (2005) Himachal

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Pradesh 21 titled as Jeet Ram Kishore and others vs. Sunder

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Singh .

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Even otherwise from a perusal of the amendments now sought, it is evident that a totally new defence is sought to be raised thereby surprising the other side. Other than the aforesaid, admissions made in the written statement previously filed are now being withdrawn.

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