Himachal Pradesh High Court
Mehar Singh Alias Mahant Ram Through vs Gurdev Singh And Others on 12 May, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CMPMO No.491 of 2015.
Judgment reserved on :06.05.2016.
Date of decision: May 12th , 2016.
Mehar Singh alias Mahant Ram through .....Petitioners. His LR's Pali Devi and others of Versus Gurdev Singh and others .....Respondent s.
Coram rt The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1Yes For the Petitioners : Mr.K.D.Sood, Senior Advocate with Mr.Rajneesh K.Lal, Advocate, For the Respondents : Mr.Ashwani K.Sharma, Senior Advocate with Mr.Nishant Kumar, Advocate, for respondents No.1,4,6,8,9,11,12,13,14,16 and 19.
Mr.Rajiv Rai, Advocate, for
respondent No.7.
Tarlok Singh Chauhan, Judge.
This petition under Article 227 of the Constitution of India takes exception to the order passed by the learned trial Court whereby the application filed by the petitioners for amendment of the plaint came to be rejected.
2. The learned trial Court after invoking proviso to Rule 17 of Order 6 CPC rejected the application and further concluded that even the proposed amendment was not in any way necessary for purpose of determining the real question of controversy between the parties.
Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/04/2017 20:20:36 :::HCHP 2 I have heard the learned counsel for the parties and have gone through the records of the case.
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3. The amendment proposed by the petitioners reads thus:-
"13. That in the head note Para No.(vi), in plaint Para No.2-A and in prayer clause Para No.(v) is to be added in the following manner:-
of "The land in question, in the year 1952, was subject matter of lis in which the matter was decided and entries were incorporated in the revenue record in which Sh.Gossain predecessor-in-interest of Sh. Tota Singh, Mangal Singh and rt Mehar Singh was entered as Gair Mourusi. After the death of Sh.Gossain, the land mentioned above, devolved upon S/Sh. Tota Singh, Mangal Singh and Mehar Singh. Sh.Gurdev has got the estate of Sh. Tota Singh to the extent of 1/3 share but unfortunately in the land mentioned above, he in connivance with revenue authority, manipulated wrong, illegal and baseless entry of 1/2 share instead of 1/3 share behind the back of the plaintiffs and their predecessor-in-interest. Neither the plaintiffs nor their predecessor-in-interest ever created any tenancy for their shares in the aforesaid land in favour of defendant No.1 nor made any statement to increase his share from 1/3 to 1/2.
The plaintiffs are not bound by such entry. Neither the plaintiffs nor their predecessor-in-interest ever gifted or mutated any part of their share in the aforesaid land in favour of defendant No.1 or Sh. Tota Singh. The defendants No.1,12, 13, 20 have raised constructions during the pendency of the case, despite the interim injunction order. The maps of their constructions are attached herewith. The constructions raised by the aforesaid defendants are on the best part of the land and they have violated the law intentionally and such constructions deserves to be demolished for the smooth and legal partition of the suit property. After demolishing the construction the land deserves to be restored to its original nature, so that the partition proceeding may be done in accordance with law."
4. Evidently, in the entire application, there is not even a whisper that inspite of due diligence the petitioners could not raise the matter before the commencement of the trial.
::: Downloaded on - 15/04/2017 20:20:36 :::HCHP 35. Mr.K.D.Sood, Senior Advocate, assisted by Mr.Rajneesh K.Lal, Advocate, would vehemently argue that the trial can be said to .
have commenced only when a party leads its evidence, whereas, on the other hand, Mr.Ashwani K.Sharma, Senior Advocate, assisted by Mr.Nishant Kumar, Advocate, would argue that commencement of trial means the time when the issues are struck.
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6. In Kailash versus Nanhku and others (2005) 4 SCC 480, the Hon'ble three Judges' Bench of the Hon'ble Supreme Court while rt dealing with an election petition in no uncertain terms held that in a civil suit the trial begins when the issues are framed and the case is set down for recording of evidence. It is apt to reproduce the following observations:-
"Trial" of election petition, when it commences?
13. At this point the question arises: When does the trial of an election petition commence or what is the meaning to be assigned to the word 'trial' in the context of an election petition?
In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence......"
7. In Baldev Singh and others versus Manohar Singh and Another (2006) 6 SCC 498, the Hon'ble Supreme Court held that commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in a limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments, as would be evident from the following observations:-
"17.Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has ::: Downloaded on - 15/04/2017 20:20:36 :::HCHP 4 already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It .
appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited of sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted herein after, parties are yet to file their documents, we do rt not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings."
8. In Ajendraprasadji N.Pandey and another versus Swami Keshavprakeshdasji N. and others (2006) 12 SCC 1, the Hon'ble Supreme Court after placing reliance on the judgment of Kailash (supra) reiterated that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence.
This would be evident from the following observations:-
"60. The above averment, in our opinion, does not satisfy the requirement of Order 6 Rule 17 without giving the particulars which would satisfy the requirement of law that the matters now sought to be introduced by the amendment could not have been raised earlier in respect of due diligence. As held by this Court in Kailash vs. Nankhu (2005) 4 SCC 480, the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence."
9. What is due diligence has though not been defined in the Code, but has then been explained by the Hon'ble Supreme Court in ::: Downloaded on - 15/04/2017 20:20:36 :::HCHP 5 Chander Kanta Bansal versus Rajinder Singh Anand (2008) 5 SCC 117 in the following terms:-
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"16. The words "due diligence" have not been defined in the Code. According to Oxford Dictionary (Edn.2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work of and duties, showing care and effort. As per Black's Law Dictionary (18th Edn.), "diligence" means a continual effort to accomplish something, care; caution; the attention and care rt required from a person in a given situation. "Due diligence"
means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edn.13-A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs."
10. What, therefore, can be discerned from the various judgments referred to above, is that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence.
11. In this background, the next question that arises for consideration is as to whether in absence of any averment with respect to the due diligence in the application the same can be allowed.
12. Order 6 Rule 17 of CPC reads thus:-
"17. Amendment of Pleadings .- The Court may at any stage at 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:::: Downloaded on - 15/04/2017 20:20:36 :::HCHP 6
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."
13. It is evident from the bare perusal of the proviso that ordinarily amendment in pleadings is not allowed after the trial has of commenced unless the Court is satisfied that the party concerned could not apply even after exercise of due diligence for such amendment rt before the commencement of trial. In other words, it was incumbent upon the petitioners to have specifically pleaded that inspite of due diligence they could not raise the matter now sought to be raised. After-
all, right to amend is not an absolute right but depends on various principles. Concededly, there is not even a whisper regarding this fact in the entire application.
14. The Hon'ble Supreme Court has interpreted the proviso to be a requirement mandated to prevent frivolous applications for amendment intended, only to delay the trial. In Salem Advocate Bar Association versus Union of India AIR 2005 SC 3353, wherein it was held as under:-
"27. Order VI Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but wi th an added proviso to prevent application for amendment being allowed after the trial has commenced, unless court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not ::: Downloaded on - 15/04/2017 20:20:36 :::HCHP 7 have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no .
illegality in the provision."
15. Having failed to do so, no infirmity, irregularity much less illegality can be found with the order passed by the learned Court below whereby it dismissed the application for amendment of the plaint.
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16. Having said so, I find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs.
rt Pending application, if any, also stands disposed of. Interim order dated 27.11.2015 stands vacated.
May 12th , 2016. (Tarlok Singh Chauhan),
(krt) Judge.
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