Court Cannot Decide Merits at the Stage of Amendment—If Construction Took Place During Appeal, Plaintiff Has Right to Amend: Himachal Pradesh High Court

“Refusing to allow amendment for subsequent events is a miscarriage of justice; test of due diligence met” – Himachal Pradesh High Court set aside an Appellate Authority’s order rejecting a plea for amendment of the plaint under Order 6 Rule 17 of the Code of Civil Procedure, 1908, holding that the lower court had committed a serious error in assessing the evidentiary value of the Local Commissioner’s report at the amendment stage.

Justice Ajay Mohan Goel ruled that the amendment sought by the petitioner was based on developments that occurred after the suit and appeal had been filed, and therefore, the due diligence requirement under the proviso to Order 6 Rule 17 CPC stood satisfied. He allowed the amendment and observed that refusing to consider subsequent events would lead to multiplicity of litigation and frustrate the ends of justice.

“The Court Ought Not to Have Prejudged the Commissioner’s Report While Deciding the Amendment Application”

The central issue before the Court was whether the plaintiff’s application to amend the plaint—to incorporate allegations of fresh construction carried out by the defendant during the pendency of an appeal—could be rejected by the Appellate Authority by commenting on the credibility of the Local Commissioner’s report which served as the basis for the amendment.

The High Court sharply disagreed with such an approach:

“The Local Commissioner was appointed by the Court and raising objections to the report… lay in the domain of the respondent. It was not for the learned Court to have had commented upon the veracity of the report of the Local Commissioner in the manner in which it has been done in the impugned order.” [Para 8]

The High Court made it unequivocally clear that merits of the amendment or the truth of the allegations therein are not to be assessed at the stage of Order 6 Rule 17. It held that the trial process, including filing of amended written statement and evidence, is the appropriate stage for such scrutiny.

“Subsequent Construction Violating Status Quo Order is a Justifiable Basis for Amendment”

The factual matrix revealed that the petitioner’s original suit for injunction had been dismissed by the trial court. During the pendency of his appeal, the appellate court passed a status quo order on 18.03.2015 under Order 39 Rules 1 & 2 CPC. The petitioner alleged that the respondent violated the order and carried out fresh construction on the suit land. To establish this, he successfully sought the appointment of a Local Commissioner, whose report confirmed the existence of newly constructed house, veranda, septic tanks, and building materials.

The High Court observed:

“A house along with veranda which seemed to be freshly constructed… two septic tanks… bricks, sand, bajri, saria etc. were lying on the spot.” [Para 7 quoting the Commissioner’s report]

Relying on this report, the petitioner had moved an application for amendment of plaint in 2019, which the lower court rejected.

The High Court found that the entire cause for amendment arose during the pendency of the appeal, and thus, no question of prior delay or lack of diligence arose. The Court remarked:

“In these circumstances, it would have been in the interest of justice in case the application was allowed… The test of due diligence was satisfied by the petitioner.” [Para 8]

“Amendment to Bring on Record Subsequent Events Should Not Be Denied Lightly”

Justice Goel highlighted that the principles governing amendments are well settled—if the amendment seeks to bring on record events that occurred post-filing, and it does not change the nature of the original suit, courts should ordinarily allow such amendments to prevent unnecessary multiplicity of proceedings.

“The petitioner did not intend to improve his case by seeking the amendment, but was seeking the amendments on account of the subsequent events which took place during the pendency of the appellate proceedings.” [Para 10]

The Court added that allowing such an amendment would not cause prejudice to the defendant, since he would have every opportunity to file a reply, contest the new averments, and lead evidence to counter the allegations.

“Miscarriage of Justice Results When Amendments for Subsequent Events Are Rejected Without Justification”

Finding the appellate court’s reasoning unsustainable, the High Court concluded that the rejection of the amendment was not only legally incorrect but also resulted in injustice. It held:

“The learned Appellate Court has erred in not appreciating that in the peculiar facts of the case, the application seeking amendment of the plaint deserved to be allowed…” [Para 10]

In setting aside the order, the Court permitted the incorporation of the proposed amendments and directed the parties to appear before the trial court on 10.11.2025.

Procedural Fairness Demands Flexibility to Accommodate Events That Occur During Litigation

This judgment reinforces the principle that civil litigation must reflect evolving factual realities, particularly when such events are court-recognised, like those recorded by a court-appointed Local Commissioner. It also serves as a reminder to lower courts that assessing the evidentiary value of such reports is not within the scope of an amendment application under Order 6 Rule 17 CPC.

As the Court succinctly observed:

“Refusal to allow amendment in such circumstances amounts to miscarriage of justice.”

Date of Decision: 27 October 2025