Delhi District Court
Suit No. 95/05 vs Gattu Mahesh And Others on 10 December, 2012
IN THE COURT OF SH. PITAMBER DUTT; AD&SJ(CENTRAL)-17,DELHI
Suit No. 95/05
Sh. Sunder Singh ......P la i n t i f f
Versus
Mrs Seema Mago .....D e f e n d a n t
ORDER
1 Vide this order I shall decide an application filed under Section 21-22 of Specific Relief Act as well as under order 6 Rule 17 read with Section 151 CPC for seeking amendment of the plaint.
2 It is averred in the application that plaintiff has filed a suit for specific performance, possession and permanent injunction against the defendant. It is further averred that on the last date of hearing i.e on 21.09.2012, plaintiff came to know that due to misunderstanding, typing mistake the counsel for the plaintiff could not mentioned certain important facts which are required to be pleaded in the plaint under the law. It is further averred that the plaintiff want to add the said fact in the plaint by way of adding para 6A as mentioned in para 2 of the application. It is further averred that plaintiffs also want to add prayer for alternative of refund of the earnest money paid by him to the defendant.
It is further averred that the proposed amendment in the plaint will not change the cause of action and defendant would not be prejudiced in any manner whatsoever if the above amendment are allowed and plaintiff be permitted to incorporate the proposed amendment in the plaint. it is prayed that application be allowed.
3 The defendant has filed reply to the application taking preliminary objection that application is totally incorrect, baseless and misconceived. The plaintiff cannot incorporate the mandatory requirement as provided under Section Suit No. 95/05 1/7 16-C of Specific Relief Act by way of amendment only on the plea of typographical mistake, mis-understanding and inadvertence that too at such a belated stage.
4 The defendant has denied the averment on merit of the application. She denied that plaintiff came to know that due to inadvertence cause for the plaintiff could not mention certain facts which were required to be pleaded in the plaint itself. She has also denied that the amendment sought by the plaintiff would not change the cause of action or would not introduce any new case. She also denied that defendant would not prejudice in any manner if the proposed amendments are allowed. All other averments have also been denied. It is prayed that application be dismissed with cost.
5 I have heard ld. Counsel for the parties and perused the application and reply thereof. The plaintiff by present application has sought permission to allow him to make necessary amendment in the plaint. Order 6 Rule 17 CPC talks about amendment of the pleadings which reads as under:-
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, 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.
6 A perusal of the above shows that either of the parties can be allowed to amend their respective pleadings at any stage, if the requirement of the rule is satisfied. It is relevant to point out that the C.P.C has been amended. Vide Suit No. 95/05 2/7 Amendment Act 2000 and a proviso to rule 17 C.P.C has been added which provides that no amendment shall be allowed after the commencement of the trial unless the parties seeking amendment satisfy the court that the proposed amendment could not have been incorporated before the commencement of the trial in spite of exercising of due diligence.
7 The evidence of both the parties were concluded on 3.7.12 and therefore the matter was posted for final arguments. The ld. Counsel for both the parties advanced final arguments on 21.09.2012 and the matter was posted for 5.10.2012 for clarification. At that stage, on 3.10.2013, the plaintiff has filed the instant application. The same thus has been filed after the commencement of trial.
8 Vide this application plaintiff has sought to incorporate certain essential fact which are mandatory as per Section 16(C) of Specific Relief Act and has not been mentioned in the plaint. The plaintiff has also sought permission to incorporate an alternative relief of refund of the earnest money which has also not been claimed by the plaintiff.
9 The plaintiff has thus sought two sets of relief vide this application. As regard the incorporation of alternative prayer of refund of earnest money is concerned, the plaintiff was required to claim the said relief at the initial stage. But the proviso of Section 22 of Specific Relief Act itself provides that if any party has not claimed alternative relief for which he or she is entitled to, then they can be allowed to amend the plaint at any stage on such terms as deem just and necessary.
10 The plaintiff has filed case for Specific Relief however has not claim the alternate relief of refund of earnest money at the time of filing of the suit. By way of present application, the plaintiff has sought permission to incorporate the said relief in the plaint in compliance of Section 21 & 22 of Specific Relief Act which can be allowed to be incorporated at any stage in the interest of justice. 11 The other part of the application is that the plaintiff want to amend the Suit No. 95/05 3/7 plaint and make necessary averment to show his willingness and readiness which is mandatory as per Section 16-C of Specific Relief Act. It is relevant to point out that the instant suit was filed on 23.07.2005 and trial has already been concluded even final arguments has been advanced by the parties. At that stage counsel for the plaintiff sought permission to incorporate essential fact in compliance of Section 16-C of Specific Relief Act which have not been mentioned in the plaint. The plaintiff has tried to explain that these fact could not be mentioned in the plaint earlier due to inadvertence and same are typographical error. The plea of the plaintiff, however, cannot be accepted because as per Section 16 (C) of the Specific Relief Act 1963 a specific performance of contract cannot be enforced in favour of a person who fails to aver and prove his readiness and willingness. The continuous readiness and willingness of the plaintiff to perform his part is the essential component for determining his entitlement with respect to the relief sought by him, therefore, non-incorporation of such averment in the plaint cannot be treated as inadvertence or error of any nature. The amendment with respect to readiness and willingness of the plaintiff sought to be incorporated by the plaintiff by way of this amendment application thus cannot be taken as mere typographical error or mistake on the part of the plaintiff.
12 Similar preposition came for consideration before the Hon'ble Supreme Court of India in J. Samuel and others Vs Gattu Mahesh and others reported as 1 ( 2012) SLT 356. Para 11 to 16 of the said judgment is relevant for the purpose of deciding the instant application which are reproduce hereinunder:-
11. As stated earlier, in the present case, the amendment application itself was filed only on 24.09.2010 after the arguments were completed and the matter was posted for judgment on 4.10.2010. On proper interpretation of proviso to Rule 17 of Order VI, the party has to satisfy the Court that he could not hav e discovered that ground which was pleaded by amendment, in spite of due diligence. No doubt, Rule 17 confers power on the Court to amend the pleadings Suit No. 95/05 4/7 at any stage of the proceedings. However, proviso restricts that power once the trial has commenced.
Unless the court satisfies that there is a reasonable cause for allowing the amendment normally the court has to reject such request. An argument was advanced that since in the legal notice sent before filing of the suit, there is reference to readiness and willingness and the plaintiff has also led in evidence, nothing precluded the Court from entertaining the said application with which we are unable to accept in the light of Section 16 (C) of the Specific Relief Act as well as proviso to Order VI Rule 17. The only reason stated so in the form of an affidavit is omission by 'type mistake". Admittedly, it is not an omission to mention a word or an arthmetical number. The omission is with reference to specific plea which is mandated in terms of Section 16 ( C) of the Specific Relief Act.
12. The primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The court's discretion to grant permission for a party to amend his pleadings 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 that in spite of due diligence the party could not have raised the matter before the commencement of trial.
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 party seeking to use the adjudicatory machanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate Suit No. 95/05 5/7 and sufficient. The terms 'Due diligence' is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situation 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.
15. In the given facts, there is a clear lack of 'due diligence' and the mistake committed certainly does not come within the purview of a typographical error. The term typographical error is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes error due to mechanical failure or slips of the hand of finger, but usually excludes errors of ignorance. Therefore, the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertain in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code.
16. The claim of typographical error/mistake is baseless and cannot be accepted. In fact, had the person who prepared the plaint, signed and verified the plaint showed some attention, this omission could have been noticed and rectified there itself. In such circumstances, it cannot be construed that due diligence was adhered to and in any event, omission of mandatory requirement running into 3 to 4 sentences cannot be a typographical error as claimed by the plaintiffs. All these aspects have been right considered and concluded by the trial court and the High Court has committed an error in accepting the explanation that it was a typographical error to mention and it was an accidental slip. Though the counsel for the appellants have cited many decisions, on perusal, we are of the view that some of those cases have been decided prior to the insertion of Order VI Rule 17 with proviso or on the peculiar facts of that case. This court in various Suit No. 95/05 6/7 decisions upheld the power that in deserving cases, the Court can allow delay amendment by compensating the other side by awarding costs. The entire object of the amendment to Order VI Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprise and that the parties had sufficient knowledge of other's case. It also helps checking the delays in filing the applications. ( Vide Aniglase Yohannan v.Ramlatha and others, VII ( 2005)SLT 376=IV (2005) CLT ( SC)=(2005) 7SCC534; Ajendraprasadji N Pandey and Another v. Swami Keshavprakeshdasji N. and others, I ( 2008) CLT 65 ( SC)=(2008) SLT 159; Chander Kanta Bansal V. Rajinder Singh Anand, II (2008) CLT 237 ( SC)=IV ( 2008) 5 SCC 117; Rajkumar Guraward ( dead) through Lrs V. S.K. Sarwagi and Company Private Limited and Another, V( 2009) SLT 786=III(2009) CLT 155 ( SC)=2008 14 SCC 364;
Vidyabai and others v. Padmalatha and Another, I ( 2009) SLT 336=1 (2009) CLT 147 ( SC)=(2009)2 SCC 409; Man Kaur ( dead) by Lrs V. Hartar Singh Sangha, IV ( 2010) CLT 58 (SC)= VII ( 2010) SLT 144 =(2010) 10 SCC 512.
13 The aforesaid legal preposition thus clearly shows that the amendment sought to be incorporated by way of instant application with respect to readiness and willingness of the plaintiff is not an inadvertence, typographical error or mistake on the part of the plaintiff but is a material amendment which cannot be allowed at this belated stage.
14 In view of the above facts and circumstances, the application filed by the plaintiff under Section 21 & 22 of Specific Relief Act as well as order 6 Rule 17 read with Section 151 CPC is partly allowed and partly dismissed. The plaintiff is permitted to add the alternative relief of refund of earnest money vide prayer F in the plaint. But the application of the plaintiff for amendment sought to be incorporated by adding Para 6A in the plaint is dismissed.
Announced in the open court ( PITAMBER DUTT)
On the 19th January, 2013 Additional District Judge
Suit No. 95/05 7/7
Delhi
In view of the above facts and circumstances, the suit filed by the plaintiff against the defendant is decreed with cost. A decree of recovery of Rs. 2,98,008.47 is passed in favour of the plaintiff and against the defendant along with interest @ 9% per annum (simple) from the date of filing of the suit till its actual realization. Decree sheet be accordingly prepared. File be consigned to record room after due compliance.
Announced in the open court ( PITAMBER DUTT)
On the 10th December, 2012 Additional District Judge
Delhi
Suit No. 95/05 8/7