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Madhya Pradesh High Court

Rajesh Singh Rajput vs Devi Singh Bundela Judgement Given By: ... on 29 April, 2014

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                                                    W.P.No.3299/2014


                 Writ Petition No.3299/2014

29.04.2014

      Shri Vishal Dhagat, learned counsel for petitioner.

       None for respondents.

Heard.

Order dated 24.01.2014 passed in Civil Suit No.50-A/2010 by First Additional District Judge, Hoshangabad is being assailed vide present petition under Article 227 of the Constitution of India.

Vide impugned order, trial Court rejected the application preferred by the petitioner/plaintiff in the suit, filed under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short 'CPC') and application under Order 7 Rule 14 of the CPC. Suit by the plaintiff is for specific performance of agreement of sale dated 20.05.2006. Respondent No.1/defendant filed written statement and denied the factum of agreement of sale as also other averments in the plaint.

Petitioner filed an application under Order 6 Rule 17 of CPC proposing to add in the plaint, pleadings regarding mortgage of property by the defendant and also the fact that defendant entered into an agreement with one Prem Narayan for sale of suit land. Plaintiff also proposed to take an alternative plea that respondent/defendant No.1 may return the money paid to him in lieu of agreement of sale with interest. Petitioner also filed an application under Order 7 Rule 14 of CPC for taking certain documents on record. Defendant raised an objection contending inter alia that, the petitioner in order to over come the 2 W.P.No.3299/2014 shortcomings in the plaint by incorporating time barred relief by way of amendment to prolong the litigation.

Trial Court taking into consideration the entire facts on record that the plaintiff has filed an application seeking amendment in the plaint after the matter being heard on merits to overcome the defence taken by the defendant and that the suit for specific performance of agreement of sale dated 20.05.2006 and for recovery of the amount filed on 05.12.2012 is time barred. The trial Court further observed that the amendments which the plaintiff proposes to incorporate in the plaint were very much available before filing of the suit and no cogent reason is tendered by the plaintiff in respect of not incorporating the aforesaid fact earlier, accordingly, rejected the application seeking amendment in the plaint.

Proviso to Rule 17 of Order 6 stipulates :

"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."

True it is that at any stage an amendment can be sought to bring on record and elucidate the facts as would help the Courts to arrive at a just decision, and the Courts generally should be liberal in considering such applications. The parameter however, changes when an amendment in pleading is sought after the trial has commenced. In that case the Court dwelling upon such application 3 W.P.No.3299/2014 has to satisfy itself that despite of exercising of due diligence the party which seeks an amendment could not bring the facts on record at the time of filing the suit or written statement, as the case may be.

In Vidya Bai and ors v. Padamlatha AIR 2009 SC 1433 it has been held:

"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 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."

The impugned order when adjudged on the principle of law laid down in Vidya Bai (supra) and J. Sammuel (Supra) does not suffer the jurisdictional error as would warrant an interference.

Even otherwise, apparently, the plaintiff was attempting to incorporate a time barred issue by way of amendment.

In Dhaniram Jagannath Shivhare vs. Saraswati Devi Ratan Lal Shivhare : 1998 (1) MPLJ 483 it is held - " There can be no dispute with the legal proposition that in a suit for specific performance of the agreement no amendment can be permitted if it is established on record that the amendment is being sought after the period of limitation."

In view whereof the conclusion arrived at by the trial Court in rejecting the application on the ground that the amendment sought for being after the period of limitation cannot be faulted with.

W.P.No.3299/2014

As to the application under Order 7 Rule 14; whereby, the petitioner sought leave to bring on record xerox copy of Iqrarnama and certified copy of Khasra, the trial Court observing that xerox copy is not admissible in evidence, rejected the application.

Section 64 of the Indian Evidence Act, 1872 stipulates -

"Documents must be proved by primary evidence, Primary evidence, as per Section 62 means the document itself produce for the inspection of the Court."

The impugned order rejecting the application under Order 7 Rule 14 of CPC when tested on the anvil of provisions contained in Section 64 read with Section 62 of the Indian Evidence Act, 1872 cannot be faulted with.

Since there is no error of jurisdiction by the trial Court, no interference is caused.

In the result, petition fails and is dismissed. No costs.

(SANJAY YADAV) JUDGE anand