Himachal Pradesh High Court
State Of Hp vs Balraj Singh And Others on 4 July, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. 88/2016
Decided on: July 4, 2016
_________________________________________________________________
.
State of HP ...........Petitioner
Versus
Balraj Singh and others ..........Respondents
_________________________________________________________________
Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge
Whether approved for reporting? 1
For the petitioner : Mr. Parmod Thakur, Additional
of
Advocate General.
For the respondents :
Mr. H.S. Rangra, Advocate, for
respondents No.1 and 2.
_________________________________________________________________
rt
Rajiv Sharma, Judge (oral)
This petition has been instituted against Order dated 5.6.2015 rendered by the learned Civil Judge (Junior Division), Court No.2, Mandi, District Mandi, HP in case RBg No. 10099/13 (CS No. 108/12/10).
2. "Key facts" necessary for the adjudication of the present petition are that respondents No.1 and 2 have filed a suit for possession of land comprised in Khewat No. 97, Khatauni No. 107, Khasra Nos. 897 and 914 Kita 2 measuring 00-08-17 Bigha situate in Muhal Ner, Hadbast No. 222, Ilaka Balh, Tehsil Sadar, District Mandi, Himachal Pradesh.
Petitioners have filed an application under Order 8 Rule 1 CPC to produce some additional documents. Application was allowed by the learned trial Court on 20.11.2014. Petitioners thereafter filed an application under Order 6 Rule 17 CPC for amending 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:45:24 :::HCHP 2the written statement on 6.4.2015. According to the averments made in the application, dispute is 60 years old. Since written statement was to be filed within prescribed period, same was .
prepared on the basis of revenue record which was available at that time. Petitioners searched and found from the old record that suit land was purchased by them in the year 1973 from one Smt. Bashira. It is in these circumstances application was of filed. It was contested by the defendants. According to the averments made in the reply, petitioners were the custodian of rt revenue record. Thus, it is not feasible that they were not aware of the revenue entries. They have denied that the suit land was purchased by plaintiffs from one Bashira. Plaintiffs also denied that the proposed amendment was self explanatory.
3. Suit was instituted before the learned trial Court on 15.1.2010. Application for amendment of written statement was filed on 6.4.2015. Issues have already been framed and application for amendment has been filed after first hearing of the suit. Petitioners have not mentioned at what point of time, mutation was effected qua alleged purchase. They have also not stated when they came to know about the entries in the revenue record. They have also not pointed out that despite due diligence this fact could not be raised before commencement of the trial.
Application has been filed admittedly after five years. Court has to take liberal approach while granting amendment of written ::: Downloaded on - 15/04/2017 20:45:24 :::HCHP 3 statement but in the present case, there is delay of five years in instituting application under Order 6 Rule 17 CPC.
4. Moreover, in view of the omission of a specific plea .
mandatorily required by the statute to be stated in the plaint amounts to negligence and lack of 'due diligence'. In the present case, petitioners have not stated in the application that despite due diligence, why the fact of purchase of land from of Bashira could not be mentioned in the written statement at the initial stage.
5. rt Their Lordships of the Hon'ble Supreme Court in Ajendraprasadji N. Pandey and another v. Swami Keshavprakeshdeasji N. and others, reported in (2006) 12 SCC 1, have held that a mere averment in the amendment application that the same "could not be submitted before the court in spite of utmost care taken by the defendant-applicants"
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 spite of due diligence. Their Lordships have held as under:
"60 The above averment, in our opinion, does not satisfy the requirement of Or. 6 R. 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 V/s. Nankhu & Ors. (supra), the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence.::: Downloaded on - 15/04/2017 20:45:24 :::HCHP 4
61. We can also usefully refer to the judgment of this Court in Baldev Singh and Others V/s. Manohar Singh and Another, 2006 9 SCC page 498 for the same proposition. A perusal of the proposed amendment would show that it contains numerous averments. So far .
as the averments in the proposed amendments are concerned, at page 12 of the order in para 22, the appellants admit that all the issues raised by way of proposed amendment in the written statement were taken before this Court in the appeal from order filed by the present defendants in the civil appeal filed before this Court and again in the special leave petition filed subsequent. As rightly pointed out by learned senior counsel in any section should not be so interpreted that part of it becomes otiose and meaningless and very often of a proviso itself is read as a substantive provision it has to be given full effect.."
6. Their Lordships of the Hon'ble Supreme Court in rt Chander Kanta Bansal v. Rajinder Singh Anand, reported in (2008) 5 SCC 117, have held that entire object of the amendment to Order 6 Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of the other's case. Once the trial commences on the known pleas, it will be very difficult for any side to reconcile. Their Lordships have held as under:
13. 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 raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases..::: Downloaded on - 15/04/2017 20:45:24 :::HCHP 5
15. 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.
16. The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition of 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 rt Dictionary (Eighth 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 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."
7. There is neither any perversity nor any illegality in the Order dated 5.6.2015 rendered by the learned Civil Judge (Junior Division), Court No.2, Mandi, District Mandi, HP in case RBg No. 10099/13 (CS No. 108/12/10).
8. Accordingly, there is no merit in the present petition and the same is dismissed, so also the pending applications, if any.
(Rajiv Sharma) Judge July 4, 2016 (vikrant) ::: Downloaded on - 15/04/2017 20:45:24 :::HCHP