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Judgment
Virender Singh, Judge (oral)
Petitioner Hem Singh has filed the present petition, under Article 227 of the Constitution of India, against the order dated 02.12.2025, passed by the Court of learned Civil Judge, Kullu, District Kullu, H.P., (hereinafter referred as ‘the trial Court’), in Civil Suit No. 302 of 2016, titled as, "Manju versus Hem Singh".
By way of order dated 02.12.2025, the learned trial Court has allowed the application under Order VI Rule 17 of the CPC, moved by respondent Manju.
For the sake of convenience, parties to the lis are hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court.
Brief facts, leading to the filing of the present present petition, before this Court, as borne out from the record, may be summed up as under:
Plaintiff Manju has filed the suit for permanent prohibitory injunction, restraining the defendant himself through his agents, servants, attorneys or representatives, from raising the unlawful construction of building over the joint land, comprised in Khasra No. 3546 of Khata Khatauni No.2/2, entered in Jamabandi for the year 2004-2005, of Phati Railla Kothi, Bhallan, Sub-Tehsil Sainj, District Kullu.
It is the further case of the plaintiff that the suit land measuring 1-00-00 bighas, being 20/1768 share of the suit land measuring 88-8-0 bigha, comprising in Khasra No. 3546, Khata-Khatauni No. 2/2, entered in jamabandi, for the year 2004-05 of Phati Railla Kothi Bhallan, Sub-Tehsil, Sainj, Distt. Kullu, in favour of defendant, along with a three-storyed house, vide registered sale deed No. 38/17, dated 10.03.2017 registered with Sub-Registrar Sainj, and remaining share of the land (hereinafter referred to as ‘the suit land’), is with the defendant.
It is the further case of the plaintiff that beside the three-storyed sold structure, a two-storyed structure, belonging to the plaintiff, was on the suit land. Both the houses are adjacent to each other. Now, after purchasing the land, defendant, in the first week of February, 2018 had started threatening to raise new construction, which is likely to cause damage to the house of the plaintiff, and also threatening to change the suit land, without getting the suit land, lawfully partitioned.
On the basis of the above facts, the plaintiff has sought the relief as claimed in the suit land.
When put to notice, the suit has been contested by the defendant, by taking the preliminary objections that the suit is not maintainable; plaintiff has no cause of action; and she has suppressed the true and material facts.
On merits, the description of the property has not been disputed, however, according to him, defendant is in possession of separate parcel of land, out of the suit land. It has also been admitted that on 10.03.2017, plaintiff sold 40/766 share, measuring 1 bigha (subject matter of the suit land) along with the three-storyed building, and accordingly, on 13.03.2017, mutation was entered and accepted. The defendant was put into possession of the house, and the house tax is now being paid by the defendant. The defendant has spent lakhs of rupees in the above building and has mortgaged the land and building for rupees 80,00,000/- with PNB Bagi, District Mandi. Other contents of the suit have also been denied, and a prayer has been made to dismiss the suit.
After the completion of the pleadings, the learned trial court has framed the issues, on 16.04.2022. Thereafter, the parties to the lis were directed to adduce evidence.
When the lis was pending for PWs, then, the plaintiff has filed an application, under Order VI Rule 17 of the CPC, to amend the plaint.
By way of the application, under Order VI Rule 17 CPC, the plaintiff wants to add to headnote, as Para 7(a) to 7(c), and in the relief, as Para Nos. i(a) to i(c). The proposed amendment sought, in the plaint, is reproduced as under:
“Suit for declaration to the effect that the plaintiff has sold the part of the house consisting of four storied measuring 8 meters x 5 meters total building measuring 40 sq. meters as defined in the site plan enclosed with the sale deed dated 09/10th day of March, 2017 as per dimension mentioned in the site plan attached with the sale deed i.e. having front/width eight meters front and length towards back is having five meters as depicted in the site plan enclosed with vide sale deed dated 9/10th March, 2017 and the defendant has no right over the remaining part of the said house, which is owned and possessed by the plaintiff.
Suit for possession of the adjoining portion of the house adjoining to house sold to the defendant as the dimension of the house sold to the defendant is mentioned in the site plan with the sale deed dated 9/10th day of March, 2017 i.e. having eight meters front and length towards back is having five meters and the plaintiff never sold this portion of her house and the defendant has forcibly occupied the house of the plaintiff forcibly during the pendency of this suit in the absence of the plaintiff.
Suit for mesne profit to the tune of Rs. 20,000/- per month for unauthorized occupation of the half portion of the house by the defendant from the month of January, 2023 till the handing over of the vacant possession of the two storied house in favour of the plaintiff by the defendant.
7(A): That there is a big house of the plaintiff over the suit land and at the time of sale of land measuring 1-0-0 bighas by the plaintiff in favour of the defendant, the plaintiff also sold the house having dimension of eight meters in front and five meters from front to back as depicted in the site plan attached with the sale deed dated 9/10th March, 2017 and adjoining portion of this very house is owned by the plaintiff.
7(B): That the defendant started interfering over the suit land adjoining to plaintiff filed present suit against him and thereafter, the defendant in the absence of the plaintiff as the plaintiff lives at Manali in the month of January, 2024, forcibly occupied the portion of the house of the plaintiff over the suit land aforesaid and is not handing over the possession of the same to the plaintiff, for which the plaintiff is entitled to possession as well as mesne profit to the tune of Rs.20,000/- per month.
7(C): That as per the sale deed dated 9/10th March, 2017 and site plan, the defendant is only owner in possession of land measuring 1-0-0 bighas of land alongwith five meters in length towards back from front as per the site plan attached with plaint. The defendant has no right, title or interest over the share of the plaintiff in the suit land as well as in the remaining portion of the house, which has not been sold by her to the defendant and as such, the defendant is only entitled possession of that portion of the house as detailed in the attached site plan.
i(a): That it be declared that the plaintiff has sold the house having dimension of eight meters in front and five meters in length from front to back as depicted in the site plan enclosed with the sale deed dated 9/10th March, 2017 at the time of sale of the same and the defendant has no right over the remaining portion of the house, which belongs to the plaintiff by passing a decree for declaration;
i(b): That the defendant be directed to hand over the portion of the house belonging to the plaintiff as stated supra, which the plaintiff never sold to the defendant which the defendant has forcibly occupied during the pendency of this suit in the absence of the plaintiff by passing a decree for possession;
i(c): That the plaintiff is also entitle for mesne profit to the tune of Rs. 20,000/- per month from the defendant unauthorized occupation of house of the plaintiff as referred to supra by the defendant from the month of January, 2023 till the handing over of the vacant possession of the two storied house in favour of the plaintiff, by the defendant.
The amendment is stated to be essential and necessary to decide the controversy, involved in the present case, and according to the plaintiff, the same would help the court to effectively decide the matter. According to the plaintiff, the proposed amendment will not change the nature of the suit and no prejudice would be caused to the defendant. Hence, a prayer has been made to allow the application.
This application has been contested by defendant Hem Singh, on the ground, that the application is not maintainable; applicant has got no cause of action to file the application; and the application has been filed just to prolong the litigation.
On merits, the application has been contested, on the ground, that the applicant is not entitled for amendment, as the same would change the nature of the case completely.
The learned trial Court, after hearing the learned counsel appearing for the parties, has allowed the application, vide order dated 02.12.2025.
Feeling aggrieved from the aforesaid order, present petition has been filed by the defendant, before this Court. The order, by virtue of which, the application, under Order VI Rule 17 of the CPC, has been allowed, has been challenged before this Court, by way of present petition, mainly on the ground that by way of proposed amendment, a new plea has been, taken by the plaintiff, and she has completely abandoned the plea of new construction and changed the entire nature of the suit.
Ms. Vidushi Sharma, learned counsel appearing for the defendant, has prayed that the application under Order VI Rule 17 has been filed, when the trial has already commenced and, there is no compliance with regard to the proviso, added to Order VI Rule 17 of the CPC.
Per contra, Mr. Jia Lal Thakur, learned Counsel, appearing for the respondent, has supported the order passed by the learned trial Court and prayed that the proposed amendment is necessary for the just adjudication of the case. Hence, a prayer has been made to dismiss the petition.
Heard.
Admittedly, the application under Order VI Rule 17 of the CPC has been moved, when, the lis was pending for PWs. Issues were framed by the learned trial Court, on 16.04.22, and the application under Order VI Rule 17 of the CPC was filed, in the year 2025. By way of the proposed amendment, the plaintiff challenged the contents of the sale deed. The application is totally silent about the fact as to why the application for amendment was not moved, prior to the commencement of the trial. Provisions of Order VI Rule 17 of the CPC are reproduced, as under:
“Order VI xx xx xx
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 commenced, 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.”
Law with regard to amendment has elaborately been discussed by Hon’ble Supreme Court in Life Insurance Corporation of India versus Sanjeev Builders Private Limited and anr., reported in (2022) 16 SCC 1. Relevant paragraphs 71 to 71.11 of the judgment are reproduced as under:
“71.Our final conclusions may be summed up thus:
71.1Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.
71.2All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC.
71.3The prayer for amendment is to be allowed
71.3.1if the amendment is required for effective and proper adjudication of the controversy between the parties, and
71.3.2to avoid multiplicity of proceedings, provided
(a)the amendment does not result in injustice to the other side,
(b)by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and
(c)the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
71.4A prayer for amendment is generally required to be allowed unless
71.4.1By the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,
71.4.2The amendment changes the nature of the suit,
71.4.3.The prayer for amendment is malafide, or
71.4.4.By the amendment, the other side loses a valid defence.
71.5.In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
71.6.Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
71.7.Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
71.8Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
71.9.Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
71.10.Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
71.11.Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)”.
The plaintiff, by way of the proposed amendment wants to change the entire nature of the suit and without the compliance of the proviso, added to Order VI Rule 17 CPC, the application for amendment, cannot be accepted, as a matter of record.
The plaintiff has approached the Court initially, for the relief of permanent prohibitory injunction, and now, she has sought the indulgence of the trial Court to amend the plaint, which would not only change the nature of the plaint, but, also amounts to de novo trial, when the defendant has filed the written statement, by pleading the facts, upon which, he has contested the suit filed by the plaintiff.
Considering all these facts, this Court is of the view that the learned trial Court has exceeded its jurisdiction by accepting the application Order VI Rule 17 of the CPC, that too, without any explanation, as to why the application, has not been filed, prior to the commencement of the trial.
Considering all these facts, the present petition is allowed, and the order dated 2.12.2025 is set aside. Consequently, the application, under Order VI Rule 17 of the CPC is ordered to be dismissed.
The pending application(s), if any, are also disposed of.
Parties, through their counsel, are directed to appear before the learned trial Court, on 30.9.2026.
Record be sent back forthwith.