Madhya Pradesh High Court
Smt. Shivraj Singh vs Satendra Singh Judgement Given By: ... on 6 February, 2014
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W.P.22039/2012
Writ Petition No.22039/2012
06.02.2014
Shri Kamal Singh Baghel, learned counsel for petitioners.
Shri Pramod Kumar Pandey, learned counsel for
respondents No.1,3,6,7,9 & 10(f).
The matter is finally heard with consent of learned counsel for the parties.
Order dated 29.10.2012 passed in Civil Suit No.7-A/2007 by the first Civil Judge Class-I, Sidhi is being assailed vide this petition under Article 227 of the Constitution of India; whereby, an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 seeking amendment in the plaint has been rejected.
Suit by the petitioners/plaintiffs is for declaration of adoption deed date 30.06.1994 and Will dated 27.07.1994 executed by Udayraj Singh in favour of defendant No.1 as null and void and not binding on the plaintiffs and for declaration of 3/4th share over the suit property.
After closure of plaintiffs evidence and at the stage when the defendants were to lead evidence, plaintiffs filed an application for amendment of the plaint to incorporate the facts relating to execution of a Will by Devkali (who was defendant No.2, since deceased) in favour of defendant No.1 executed on 15.11.2007. As also in respect of sale deed executed by Devkali during her life time on 16.07.2007 in favour of defendant No.1.
2W.P.22039/2012
Trial Court taking into consideration the fact that the transaction during pendency of law being governed by section 52 of the Transfer of Property Act rejected the application.
Though it is contended on behalf of plaintiffs that the trial Court failed to exercise the jurisdiction vested in it under Order 6 Rule 17 of the Code; however, with the introduction of proviso to Rule 17 of Order 6 CPC which requires that "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 commencement of trial," it is incumbent upon the applicant seeking amendment in the pleadings at post trial stage to explain the aspect of due diligence; a mere statement that erroneously it could not be incorporated is not sufficient in the considered opinion of this Court.
It is held in Chander Kanta Bansal v. Rajinder Singh Anand: 2008 (4) MPLJ 269 that :
"10. 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 the parties had sufficient knowledge of the others case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence he could not 3 W.P.22039/2012 raise a plea, it is for the Court to consider the same. Therefore, it is not a complete bar not shuts our entertaining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases.
11. ... As discussed above, though first part of Rule 17 makes it clear that amendment of pleadings is permitted at any stage of the proceeding, the proviso imposes certain restrictions. It makes it clear that after the commencement of trial, no application for amendment shall be allowed. However, if it is established that in spite of 'due diligence' the party could not have raised the matter before the commencement of trial depending on the circumstances, the Court is free to order such application. The words 'due diligence' has not been defined in the Code. According to Oxford Dictionary (Edition 2006), the word 'diligence' means careful and persistent application or effort. 'Diligent' means careful and steady in application to one's work and duties showing care and effort. As per Black's Law Dictionary (Eighteenth Edition), 'diligence' means a continual effort to accomplish something, care; caution; the attention and care 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 Edition 13A) "due 4 W.P.22039/2012 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. It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial..." Furthermore, it is held in Vidyabai & Ors. V. Padmalatha & Anr. AIR 2009 SC 1433 :
"19. ... However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."
Recently in In J. Sammuel and others v, Gattu Mahesh and others: (2012) 2 SCC 300: it is observed by their Lordships:
"18. ... The Court's discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. However to balance the interests of the parties in pursuit of doing justice, the proviso has been added which clearly states that:
" ... no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion 5 W.P.22039/2012 that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
19- 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 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."
Having thus considered, this Court does not perceive any jurisdictional error by trial Court in passing the impugned order, as would warrant an interference.
In the result, petition fails and is dismissed. No costs.
(SANJAY YADAV) JUDGE anand