AMIT KUMAR GUPTA vs SWARGASHRAM TRUST

Court
Uttarakhand High Court

UKHC010196622026

2026:UHC:10079
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No.3400 of 2026

Amit Kumar Gupta ... Petitioner.

Versus

Swargashram Trust … Respondent.
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Presence:-
Mr. D.C.S. Rawat, learned Senior Counsel assisted by Mr. Vishesh
Srivastava, learned counsel for the petitioner.
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Hon’ble Siddhartha Sah, J. (Oral)

By means of the present Writ Petition, the
petitioner has sought quashing of the judgment and
order dated 08.10.2026, passed by the Judge Small
Causes / Additional District Judge, Kotdwar, Pauri
Garhwal in SCC Revision No. 01 of 2026, Amit Gupta
versus Swargashram Trust as well as order dated
30.07.2026, passed by Civil Judge (Senior Division)
/Judge, Small Causes, Kotdwar in Small Cause Court
Suit No. 01 of 2024, Swargashram Trust v. Amit Kumar
Gupta, whereby the Petitioner's application (Paper Nos.
40Ka-40Ga/1) under Order VI Rule 17 CPC was rejected.

2. Brief facts for the adjudication of the present
Writ Petition are as follows:

3. The plaintiff/respondent, the landlord,
instituted SCC Suit No. 01 of 2024 before the Court of
Civil Judge (Senior Division) / Judge, Small Cause Court,
Kotdwar, seeking a decree for eviction and recovery of
arrears of rent and damages against the
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defendant/petitioner. The defendant/petitioner contested
the aforesaid suit by filing its written statement,
specifically denying the plaintiff's authority and locus
standi. The defendant categorically took the defence that
the suit on behalf of the trust had not been instituted by
any authorized trustee and that no valid resolution
existed, and that the manager lacked legal competence to
represent or file a suit on behalf of the Swargashram
Trust.

4. In support of its case, the plaintiff/respondent
itself placed on record paper number 8Ga/1, a true copy
of the registered Scheme of Administration and decree
dated 19.1.1948, passed in Civil Suit No. 1 of 1947. It is
the case of the petitioner, as pleaded in the writ petition,
that in order to streamline its pleadings, the petitioner,
herein, moved an application under Order VI Rule 17
CPC on 01.07.2026, seeking to incorporate paragraph
nos.17A, 17B and 17C in the written statement to place
the undisputed terms of the Scheme of Administration on
record and to provide the necessary factual foundation
for issue no.5. The said application was numbered as
40Ga.

5. The amendment application was opposed by
the plaintiff, who filed an objection dated 17.07.2026. In
the objections, it was contended by the
plaintiff/respondent that the defendant has filed the
written statement and cross-examined the plaintiff's
witnesses, and the case is at its final stage, and the
defendant has not explained why the facts were not
raised earlier, and the amendment application has been
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filed with the object to delay the proceedings.

6. The aforesaid amendment application came up
for hearing, and the learned Judge, SCC / Civil Judge
(Senior Division), Kotdwar, Garhwal, after hearing the
learned counsel for the parties, after referring to the
provisions of Order VI Rule 17 and proviso thereto, came
to the conclusion with reference to the file that the case
is at its fag end and is fixed for remaining arguments. In
the past, part arguments of the parties have been heard.

7. The Judge, SCC / Civil Judge (Senior Division)
also recorded a finding that the defendant had filed its
written statement on 22.05.2025. The Judge, SCC / Civil
Judge (Senior Division) has also recorded the finding that
the defendant, in its application, has also admitted the
fact that the plaintiff had provided copy of paper number
8Ga/1, from which it is evident that the defendant had
the knowledge of the facts of document 8Ga/1.

8. The Judge, SCC / Civil Judge (Senior Division)
also recorded a finding that no sufficient reason has been
disclosed as to why the amendment application could not
be filed earlier in spite of due diligence.

9. It was also a ground taken by the Judge, SCC
/ Civil Judge (Senior Division) that the facts which the
defendant is desirous of incorporating by virtue of the
amendment application in the written statement
regarding the same, a point for determination no. 5 has
already been framed. The defendant can very well point
out the said facts which are mentioned in the application
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in the context of point for determination no. 5 and thus,
in view of the aforesaid findings and reasoning, the
Judge, SCC / Civil Judge (Senior Division) proceeded to
hold that the amendment application bearing Application
No. 40Ga/1 under Order VI Rule 17 of the CPC is not
tenable and deserves to be rejected, and proceeded to
reject the said application vide order dated 30.07.2026.

10. Aggrieved against the aforesaid order dated
30.07.2026, the defendant/petitioner preferred a
revision, which has also been dismissed by the Judge,
SCC / Additional District Judge, Kotdwar, Pauri
Garhwal, vide judgment and order dated 08.10.2026,
rendered in SCC Revision No. 1 of 2026.

11. Aggrieved against the aforesaid impugned
orders dated 30.07.2026 and 08.10.2026, learned Senior
Counsel would submit that the suit was admittedly
instituted by the Manager and not by the Secretary.
Relying upon the document 8Ga/1, learned Senior
Counsel would submit that it is only the Secretary who is
authorized to institute the suit on behalf of the Trust.
The learned Senior Counsel would further submit that
the proposed amendment would not change the nature of
the suit. The document with respect to which the
amendments are being sought is already on record, and
there is absolutely no need to file any document, and as
such, the Judge, SCC / Civil Judge (Senior Division),
Kotdwar, and the learned revisional court erred by
rejecting the amendment application and dismissing the
SCC revision, respectively.
12. After having heard the learned counsel for the
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defendant/petitioner and after going through the record
and the impugned orders, it is evident that the
amendment application has been filed at the fag end of
the proceedings of the SCC suit. A bare perusal of the
order passed by the Judge, SCC / Civil Judge (Senior
Division), Kotdwar, would reveal that a categorical finding
has been recorded in its order dated 30.07.2026 that the
matter is at its fag end and is fixed for remaining
arguments, and partial arguments have already been
heard. The written statement was filed by the defendant
on 22.05.2025. The Judge, SCC / Civil Judge (Senior
Division) also records a finding that the document 8Ga/1
has already been supplied to the defendant and the
defendant had the knowledge of the aforesaid document.
The Judge, SCC /Civil Judge (Senior Division) also
categorically records a finding that the sufficient cause
has not been portrayed that in spite of due diligence and
the amendment application could not be filed in the past.

13. In this context, reference needs to be made to
the proviso to Order VI Rule 17, which is being extracted
hereunder for ready reference :-

“ 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,
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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.”

14. The stage at which an amendment can be
sought with reference to proviso to Order VI Rule 17 fell
for consideration before the Hon’ble Supreme Court in
the case of Ajendraprasadji N. Pandey and another vs.
Swami Keshavprakeshdasji N. and others, reported in
(2006) 12 SCC 1. In the said judgment, the Hon’ble
Supreme Court proceeded to, inter alia, hold that under
the proviso, no application for amendment shall be
allowed after the trial has commenced, unless in spite of
due diligence, the matter could not be raised before the
commencement of trial.

15. Proviso to Order VI Rule 17 also fell for due
consideration by the Hon’ble Supreme Court in a
subsequent judgment in the case of Vidyabai and others
vs. Padmalatha and another, reported in (2009) 2 SCC
409, and in the said case also, while following the
judgment in the case of Ajendraprasadji N. Pandey
(Supra), the Hon’ble Supreme Court held that Order VI
Rule 17 is couched in a mandatory form. Unless the
jurisdictional fact, as envisaged in the proviso to Order VI
Rule 17, is found to be existing, the Court will have no
jurisdiction at all to allow the amendment of the
pleading. The court's jurisdiction to allow such an
application is taken away unless the conditions
precedent therefor are satisfied, i.e., it must come to the
conclusion that in spite of due diligence, the parties
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could not have raised the matter before the
commencement of the trial.

16. From the aforesaid judgments of the Hon’ble
Supreme Court, the position of law is very clear with
regard to an amendment after commencement of trial.
Proviso to Order VI Rule 17 very clearly lays down in no
uncertain terms that amendment of the pleadings will
not be permitted unless due diligence is shown by a
party.

17. In the present case, the document with respect
to which the amendment was sought to be incorporated
in the written statement by the defendant/petitioner was
in the knowledge of the defendant, and in fact, the
document had been supplied by the plaintiff to the
defendant/petitioner. The defendant could not show any
due diligence as to why, in spite of having the knowledge
of the aforesaid document, the amendment could not be
sought in the past.

18. It is also a very striking feature in the present
case that the part arguments had already been advanced
by the parties, and in between, the amendment
application has been filed without compliance of the
proviso to Order VI Rule 17 by the defendant.

19. In such an eventuality, the impugned order by
the learned Judge, SCC / Civil Judge (Senior Division),
Kotdwar, does not suffer from any jurisdictional error so
as to warrant any interference in exercise of powers
under Article 227 of the Constitution of India. The
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Revisional Court also did not commit any error.

20. In such view of the matter, since the Trial
Court as well as the Revisional Court did not commit any
error by rejecting the amendment application and by
dismissing the revision preferred by the
defendant/petitioner respectively, no interference is
called for.

21. The Writ Petition lacks merit and the same is
dismissed accordingly.

22. Pending Application(s), if any, stands disposed
of accordingly.


(Siddhartha Sah, J.)
03.11.2026

Shiv/







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