Madhya Pradesh High Court
Dashrath vs Decd.Rajubai Thru.Lrs.Rameshwar on 17 June, 2014
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HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
(SB: HON. SHRI JUSTICE PRAKASH SHRIVASTAVA)
Writ Petition No.1819/2014
Dashrath S/o Laxman
and Another .... Petitioners
Vs.
Deceased Raju Bai wd/o Chogalal
through Legal Heirs and Another .... Respondents
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Shri Vinay Gandhi, learned counsel for the petitioners.
Shri Subodh Abhyankar, learned counsel for the
respondent No.1.
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Whether approved for reporting :
ORDER
(Passed on 17/6/2014) 1/ This writ petition under Article 227 of the Constitution of India is at the instance of the defendant in the suit challenging the order of the trial Court dated 24.1.2014 allowing the respondent's application for amendment of plaint under Order 6 Rule 17 of the CPC.
2/ In brief, the respondent has filed the suit for permanent injunction in which the petitioners had filed the written statement as well as the counter claim. The respondent had also filed the reply to the counter claim. The petitioners thereafter had filed an application for amendment of the counter 2 claim which was rejected by the trial Court, against which the petitioners had filed W.P. No.4766/2012 which was allowed by this Court by order dated 5.7.2012 with certain conditions permitting the petitioners to file fresh application. The petitioners had filed the fresh application for amendment of written statement and counter claim which was allowed by the trial Court. At the stage of consequential amendment, the respondents had declared that they did not want to make any consequential amendment and the matter had proceeded before the trial Court and after completion of the evidence, at the final stage the respondent had filed an application under Order 6 Rule 17 of the CPC which has been allowed by the trial Court by the impugned order dated 24.1.2014.
3/ Learned counsel appearing for the petitioners submits that the trial Court while allowing the respondent's application for amendment, has not considered the effect of the proviso to Rule 17 of Order 6 of the CPC and had also not considered the earlier declaration by the respondents that they did not want to make any consequential amendment, and such a declaration acts as res judicata in respect of their application for consequential amendment. He has also submitted that the amendment will require fresh evidence by the parties.
4/ As against this, learned counsel for the respondent submits that the application for amendment was only for 3 consequential amendment for amending the written statement filed by the petitioners in reply to the counter claim and for that amendment no further evidence is necessary.
5/ I have heard the learned counsel for the parties and perused the record.
6/ After the amendment in the CPC and incorporation of the proviso in Rule 17 of Order 6, the discretion to amend the pleading at any stage of the proceedings has been restricted and the requirement of showing "due diligence" has been imposed before allowing amendment after the commencement of the trial. In view of the amended provision unless the court comes to the conclusion that inspite of due diligence the party could not have raised the matter before the commencement of trial, no application for amendment can be allowed after the commencement of trial. The Supreme Court in the matter of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India Reported in 2005 AIR SCW 3827 while upholding the validity of the amendment in the CPC, has held that the proviso to some extent curtails the absolute discretion to allow amendment at any stage, by observing as under :-
"27. Order VI Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an 4 added proviso to prevent application for amendment being allowed after the trial has commenced, unless court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision."
7/ In the matter of Ajendraprasadji N. Pande & Anr. Vs. Swami Keshavprakeshdasji N. & Ors. reported in AIR 2007 SC 806, the Court has expressed that the proviso has been introduced to strike a balance, by observing as under :-
"33. Ultimately to strike a balance the Legislature applied its mind and re-introduced Rule 17 by Act 22 of 2002 w.e.f. 1.7.2002. It had a provision permitting amendment in the first part which said that the Court may at any stage permit amendment as described therein. But it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the Court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is this proviso which falls for consideration."
8/ Supreme Court in the matter of Vidyabai and others Vs. Padmalatha and Another reported in AIR 2009 SC 1433 while expressing about the limited jurisdiction to allow amendment in terms of the proviso has held :- 5
"14. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. 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."
9/ In the matter of J. Samuel and others Vs. Gattu Mahesh and others reported in (2012) 2 SCC 300, the Supreme Court has noted that not only the two conditions i.e., No injustice should be done to the other side and necessity of amendment for determining the real question in controversy between the parties, must be satisfied but after the amendment and incorporation of proviso, the test of due diligence must also be satisfied. The Supreme Court in the matter of J. Samuel (supra) has held as under :-
"16. As stated earlier, in the present case, the amendment application itself was filed only on 24-9-2010 after the arguments were completed and the matter was posted for judgment on 4-10-2010. On proper interpretation of the proviso to Rule 17 of Order 6, the party has to satisfy the court that it could not have 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 at any stage of the proceedings. However, the proviso restricts that power once the trial has commenced. Unless the court satisfies (sic 6 itself) that there is a reasonable cause for allowing the amendment, normally the court has to reject such a request.
17. *************************************** 18/ The primary aim of the court is to try the case on its merit 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."
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.
20/ A party requesting a relief stemming out of a claim is required to exercise due diligence and it 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."
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10/ Coming to facts of the present case, petitioner's application for amendment in the counter claim was allowed by the trial Court by the order dated 5.7.2012 and thereafter the respondent had refused to avail the opportunity to make any consequential amendment and the parties had led evidence and matter had reached to the final stage. On 13.1.2014 the trial Court had heard final arguments and had reserved the case for judgment. The respondent thereafter had filed an application under Order 6 Rule 17 of the CPC on 17.1.2014 for consequential amendment in the written statement as a result of the amendment incorporated by the petitioner in the counter claim. The only reason disclosed in the amendment application is that it was necessary for the respondent to make consequential amendment in the written statement in response to the amendment in the counter claim but due to confusion and mistake the said amendment could not be done. There is nothing in the application indicating that inspite of the due diligence the respondent could not take steps for making the consequential amendment in the written statement. The test of due diligence in terms of the proviso to Rule 17 of Order 6 is not satisfied in the present case. The trial Court while passing the impugned order, has not recorded any finding that the respondent could not move for the consequential amendment 8 earlier inspite of the due diligence.
11/ There is yet another reason for setting aside the impugned order of the trial Court. The petitioners' application for amendment of counter claim was allowed by the trial Court by order dated 5.7.2012 and thereafter the matter was listed before the trial Court for consequential amendment of the written statement by the respondent on 6.12.2012 and on that date, the counsel for the respondent had declared before the trial Court that the respondent did not want to make any consequential amendment in the written statement (reply to the counter claim) and after recording the said statement of the counsel for the respondent, the matter was proceeded before the trial Court and the evidence of the parties was recorded. After making such a declaration which was binding on respondent, it was not open to the respondent to take a U turn and by acting contrary to declaration file an application for consequential amendment even without furnishing any satisfactory explanation for retracting from the said declaration. [See: (2003) 6 SCC 595 Roop Kumar Vs. Mohan Thedani, AIR 1979 SC 1436 Smt. Sukhrani (dead) by L.R.s and others Vs. Hari Shankar and others, AIR 1960 SC 941 Satyadhyan Ghosal and others Vs. Smt. Deorajin Debi and another, AIR 1924 Privy Council 202 Maharajadhiraj Sir Rameshwar Singh Bahadur Vs. Hitendra Singh and others, AIR 1929 Privy 9 Council 289 Charles Hubert Kinch Vs. Edward Keith Walcott and others and the order of the Division Bench of this Court dated 2.12.2010 in W.P. No.6089/2010 in the matter of Mangilal and others Vs. Jivajirao Sugar Co. Ltd. Daloda and others.
12/ The judgment of the Bombay High Court in the matter of Salmona Villa Co-operative Housing Society Ltd. Vs. Smt. Mary Fernandes and others reported in AIR 1997 BOMBAY 208 relied upon by counsel for the respondent has no application in the present case since the said judgment relates to the condonation of delay in carrying out the amendment after the application for amendment is allowed.
13/ Keeping in view the aforesaid aspect of the matter, I am of the opinion that the impugned order of the trial court allowing the respondent's application under Order 6 Rule 17 of the CPC, can not be sustained and is hereby set aside.
14/ The writ petition is allowed to the extent indicated above.
(PRAKASH SHRIVASTAVA) Judge Trilok.