Andhra Pradesh High Court - Amravati
M.S.Gnanambika vs V. Subramanyam on 12 July, 2019
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
CIVIL REVISION PETITION NO.1609 OF 2019
ORDER:
This civil revision petition is filed under Article 227 of the Constitution of India, challenging the order dated 07.03.2019 passed in I.A.No.858 of 2018 in O.S.No.376 of 2016 by the Senior Civil Judge, Puttur, whereby, the petition filed under Order VI Rule 17 of Civil Procedure Code (for short "C.P.C.") to amend the written statement, was dismissed.
The petitioner is the sole defendant and filed petition under Order VI Rule 17 of C.P.C. on the ground that on receipt of summons from the Court without receiving any document i.e. document sued upon annexed to the list of documents, engaged counsel and filed written statement. As the agreement of sale is created by the plaintiff, the petitioner advised his counsel to get the agreement of sale filed by the plaintiff and his counsel obtained the same along with his written statement and informed him that the suit coming up for cross-examination of P.W.1. Later, the petitioner approached his counsel and verified the agreement of sale and came to know that the alleged attestors and scribe of agreement of sale are kith and kin of the plaintiff and fabricated the same for wrongful gain. Therefore, he sought leave of the Court to raise a plea of fabrication of document.
Respondent - plaintiff opposed the petition on various grounds by filing detailed counter.
The trial Court after taking note of pleas raised by the learned counsel for the petitioner, dismissed the petition holding that there are no grounds to allow the petition.
MSM,J CRP_1609_2019 2 Aggrieved by the order, the present revision is filed mainly on the ground that the trial Court did not appreciate the specific contention of the petitioner in proper perspective and the trial Court ought to have permitted the petitioner to raise such plea.
During hearing, Sri V.Nitesh, learned counsel for the petitioner, reiterated the contentions urged in the petition.
Sri O.Udaya Kumar, learned counsel for the respondent, opposed the petition on the ground that the amendment cannot be permitted at this stage, as the trial is already commenced in view of the bar to proviso to Order VI Rule 17 of C.P.C.
It is not in dispute that the respondent - plaintiff filed suit for specific performance based on agreement of sale and the petitioner/defendant in paragraph No.11 of the written statement raised a plea that the agreement of sale is forged and created one for the purpose of filing the above suit. Now, the petitioner intended to raise a specific plea that the suit document i.e. agreement of sale is fabricated, on the ground that the agreement of sale was not verified at the time of filing of written statement, but verified only after cross-examination of P.W.1.
Even if all the allegations made in the affidavit are accepted coupled with the plea raised in paragraph No.11 of the written statement, the petitioner already raised a specific plea that the document is created. There is no much difference between fabrication and creation. Even otherwise, the petitioner is disentitled to claim relief under Order VI Rule 17 of C.P.C. as the trail is already commenced and failed to explain that despite due diligence, she could not bring those facts on record.
MSM,J CRP_1609_2019 3 Normal rule is that the amendment can be allowed at any stage, prior to amendment to C.P.C. However, by proviso to Rule 17 of Order VI of C.P.C, an interdict is created, according to it, no application for amendment shall be allowed after the trial has been commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the plea before the commencement of trial.
When the law permits amendment of pleadings at any stage of the proceedings, even in the first appellate or second appellate stage, the parties can be permitted to amend their pleadings. But, in view of the amendment to Civil Procedure Code by Act No.22 of 2002, a proviso is added to Order VI Rule 17 C.P.C, which disabled the parties to seek leave of the Court to amend the pleadings as a matter of course and it appears that, the proviso is an exception to the general rule. Therefore, to claim benefit under Order VI Rule 17 C.P.C, the petitioner must prove that, despite exercise of due diligence, she could not bring those facts on record before commencement of trial.
No doubt, another controversy is; what is the stage of commencement of trial?
In "Baldev Singh v. Manohar Singh1", the Apex Court while deciding a similar issue with regard to commencement of trial, observed that, it is well settled by various decisions of this Court as well as the High Courts in India that Courts should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. In this connection, reference was made to a decision 1 AIR 2006 SC 2832 MSM,J CRP_1609_2019 4 of the Privy Council in "Ma Shwe Mya v. Maung Mo Hnaung2" in which the Privy Council observed as follows:
"All rules of courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject-matter of the suit."
In Baldev Singh v. Manohar Singh (referred supra), the Apex Court in the concluding paragraphs held as follows:
"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 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 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 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."
It appears from the principle laid down in Baldev Singh v. Manohar Singh (referred supra) when the issues were framed in the Trial Court after completion of pleadings by both the parties in the suit and after amendment of C.P.C by Act 22 of 2002, posting the suit for filing documents or list of documents is deleted and according to Order VII Rule 14 (1) & (2) C.P.C and Order VIII Rule 1 (a) (1) & (2) C.P.C, the parties to the suit have to file the list of documents which they are relying upon and sued upon, along with their pleadings and if any document is not available, they have to 2 (AIR 1922 P.C. 249) MSM,J CRP_1609_2019 5 state in whose possession the document is available. Therefore, posting the suit for filing of documents, after framing issues is totally taken away by Act 22 of 2002. In any view of the matter, it is clear from the law declared by the Apex Court that commencement of Trial as used in the proviso to Order VI Rule 17 C.P.C is only in the limited sense as meaning the final hearing of the suit, examination of witness, and advancing arguments. Therefore, framing of issues is not the starting point of commencement of trial.
But, the principle laid down in Baldev Singh v. Manohar Singh (referred supra) was considered by the Full Bench of the Supreme Court in "Kailash v. Nankhu3", wherein, it was held that, when the issues were framed, the trial is deemed to have been commenced and the same principle is reiterated in "Vidyabai & Ors v. Padmalatha & Anr4".
In view of the law laid down by the Apex Court in the above judgments, when issues were framed and the suit is posted for trial, the trial is deemed to have been commenced. Therefore the principle laid down in Baldev Singh v. Manohar Singh (referred supra) is no more good law, in view of the judgment of the Apex Court in Kailash v. Nankhu (referred supra).
In "J. Samuel v. Gattu Mahesh5", the Supreme Court laid down certain tests as to what is 'due diligence' with reference to Order VI Rule 17 C.P.C and proviso thereto and held as follows:
"13. Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the 3 (2005) 4 SCC 480 4 (2009) 2 SCC 409 5 2012 (2) SCC 300 MSM,J CRP_1609_2019 6 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 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.
14) A party requesting a relief stemming out of a claim is required to exercise due diligence and is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit"
The word "due diligence" is not exactly defined by the Act, but in "Bharat Petroleum Corporation Ltd. v. Precious Finance Investment Pvt. Ltd6", the Apex Court held as follows:
"The Dictionary meaning of the expression "due diligence"
as given in the Blacks Law Dictionary, Sixth Edition, 1990 means "Such a measure of prudence, activity or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case." Similarly the Law Lexicon by P. Ramanatha Aiyer, Second Edition (Reprint) 2001 explains "due diligence" to mean such watchful caution and foresight as the circumstances of the particular case demands. While examining the explanation offered or cause shown as to why in spite of due diligence a party could not have raised the matter before commencement of trial, the Court may have to see the circumstances in which the party is seeking amendment. In short the explanation as to "due diligence"
depends upon the particular circumstances and the relative facts of each case to reach a conclusion one way or the other."
In "Chander Kanta Bansal v. Rajinder Singh Anand7", taking note of the object and purpose of Amendment Act 22 of 2002, the Supreme Court held that, the entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and 6 2006 (6) BomCR 510 7 (2008) 5 SCC 117 MSM,J CRP_1609_2019 7 to ensure that one party has sufficient knowledge of the case of the other party.
In view of the tests laid down by the Apex Court in the judgments referred supra as to what amounts to exercise of 'due diligence', the petitioner in the present case did not aver anything in the entire affidavit as to how she exercised due diligence and despite exercise of due diligence, she could not bring those facts on record before commencement of trial. When the petitioner did not raise such plea in the affidavit filed along with this petition, the question of substantiating the same does not arise and in fact, both the parties went into trial, despite denial of title of this petitioner by the respondents about 10 years ago. Suggestions were also put to the witnesses denying the title of the petitioner. But, they did not open their eyes and slept over for a considerable period of time and when defendants witnesses are to be cross- examined, the petitioner realized the mistake she committed in seeking relief and filed petition under Order VI Rule 17 C.P.C to raise a plea that the document sued upon is fabricated, though a specific plea is raised that the document is created one, without explaining as to how she exercised due diligence and failed to take such steps.
If, the tests laid down in the two judgments referred supra, are applied to the present facts of the case, this petitioner as an ordinary prudent woman failed to take necessary steps before commencement of trial. Failure to take steps at an earlier stage without exercise of due diligence, disentitled her to claim such MSM,J CRP_1609_2019 8 relief. Therefore, on this ground alone, this petition is liable to be dismissed.
Unless the petitioner satisfied the Court that, despite exercise of due diligence, she could not have brought the facts on record before commencement of trial. The amendment cannot be allowed as a matter of routine.
Further, in "Mohinder Kumar Mehra v. Roop Rani Mehra & Ors8", it was held that, the proviso to Order VI, Rule 17 prohibits the entertainment of an amendment application after the commencement of the trial with the sole object that once the parties proceed with the leading of evidence then ordinarily no new pleading should be permitted to be introduced.
But, what is required to entertain such an amendment after commencement of trial is that, the petitioner has to satisfy the Court that despite exercise of 'due diligence' she could not seek such relief of amendment before commencement of trial, as clarified in the long line of judgments referred supra and the petitioner has to satisfy the Court about the requirement under proviso to Order VI Rule 17 C.P.C. Otherwise, she is disentitled to claim relief of amendment under Order VI Rule 17 C.P.C, in view of the bar under proviso thereto.
In view of the law declared by the Courts in catena of perspective pronouncements, it is difficult to permit the petitioner to amend the written statement as the petitioner failed to satisfy the Court as to the exercise of due diligence to bring those facts on 8 (2018) 2 SCC 132 MSM,J CRP_1609_2019 9 record in view of proviso to Order VI Rule 17 of C.P.C. Apart from that the petitioner raised a specific plea that the agreement of sale is a created one. Now, he wanted to raise a plea that the agreement of sale is a fabricated one. As there is no much difference between "fabrication" and "creation", no permission need be granted to amend the written statement after commencement of trial. Therefore, I find no ground to set aside the order passed by the trial Court as it is free from any error.
It is brought to the notice of this Court that the petitioner filed earlier application under Order VIII Rule 9 of C.P.C. in I.A.No.1282 of 2017 seeking leave of the Court to file additional written statement. To circumvent the law, the present petition is filed before the trial Court to overcome the order passed by the Court. Unless earlier order is set aside, the present petition is not maintainable according to the trial Court. Petition under Order VIII Rule 9 of C.P.C. can be invoked in different situation, which deals with subsequent pleading, whereas Order VI Rule 17 of C.P.C. deals with the amendment of pleadings, hence, the finding of the trial Court on this aspect is not sustainable.
In view of my foregoing discussion in earlier paragraphs, the Trial Court rightly declined to grant leave to the petitioner to amend the written statement, as the petitioner failed to comply with the requirement under the proviso to Order VI Rule 17 C.P.C, thereby the order of the Trial Court does not call for interference of this Court, as it is free from any legal infirmity, warranting interference of this Court, exercising power under Article 227 of MSM,J CRP_1609_2019 10 the Constitution of India. Consequently, the civil revision petition is liable to be dismissed.
In the result, the Civil Revision Petition is dismissed. No costs.
Consequently, miscellaneous applications pending if any, shall stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 12.07.2019 Ksp