Allahabad High Court
Mohd Mustahsan Siddiqui vs Smt. Rijwan Amra And Another on 11 January, 2018
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 7 AFR Case :- MATTERS UNDER ARTICLE 227 No. - 186 of 2018 Petitioner :- Mohd Mustahsan Siddiqui Respondent :- Smt. Rijwan Amra And Another Counsel for Petitioner :- Ashutosh Sharma Counsel for Respondent :- Manish Tandon Hon'ble Surya Prakash Kesarwani,J.
1- Heard Shri Ashutosh Sharma, learned counsel for the defendant-petitioner and Sri Manish Tandon, learned counsel for the plaintiffs-respondents.
2- This petition under Article 227 of the Constitution of India has been filed praying to set aside the impugned order dated 26.9.2017 in S.C.C. Suit No.319 of 1991 (Smt. Rijwan Amra and another v. Mohd. Mustahsan Siddiqui) passed by the Judge Small Causes Court, Kanpur Nagar and the order dated 15.12.2017 in S.C.C. Revision No.117 of 2017 (Mohd. Mustahsan Siddiqui v. Smt. Rijwan Amra and another) passed by the District Judge, Kanpur Nagar. A further prayer has been made for a direction to decide Amedment application dated 13.7.2017 being paper No.226C/4 on merits.
FACTS :-
3- Briefly stated facts of the present case are that the plaintiffs-respondents are the owner and landlord of house No.97/215A, Talak Mohal, Kanpur Nagar. Its first assessment was made on 1.4.1987. The defendant- petitioner is a tenant of a shop situate in the aforesaid house. The plaintiffs-respondents terminated the tenancy of the defendant-petitioner by a notice dated 16.5.1991 and also demanded arrears of rent and taxes. However, neither the arrears were paid nor the disputed shop was vacated and as such the plaintiffs-respondents filed S.C.C. Suit No.319 of 1991(Smt. Rijwan Amra and another v. Mohd. Mustahsan Siddiqui) in the court of Judge Small Cause Court, Kanpur Nagar, which was dismissed by judgment dated 12.11.1997 on the finding that the provisions of U.P. Act No.13 of 1972, are applicable in respect of the dispute house.
4- Aggrieved with this judgment, the plaintiffs-respondents filed S.C.C. Revision No.236 of 1997, which was dismissed by judgment dated 28.5.1998.
5- Against the aforesaid two judgments, the plaintiffs-respondents filed Writ-A No.25576 of 1998 (Smt. Rizwan Amra & another v. VIIth Addl. District & Sessions Judge, Kanpur Nagar & others ), which was allowed by order dated 8.7.2010 as under:
"Heard learned counsel for the parties.
This petition by the landlord is directed against concurrent orders by which his suit for arrears of rent and eviction has been dismissed by both the courts below.
The petitioner-landlord instituted SCC suit no.319 of 1991 inter-alia with the allegation that by partition the petitioners came in possession of plot no. 97/315A where they made new constructions of 12 shops out of which in one shop the respondent was a tenant at the rate of Rs.250 per month but he defaulted in payment of rent therefore he was liable for eviction as the same was not paid despite notice and U.P. Act No. XIII of 1972 (here-in-after referred to as the Act) was not applicable since the shops were assessed for the first with effect from 1.4.1987.
The respondent-tenant contested the suit on the allegation that he was a tenant of an old shop which was earlier let out to one Abdul Razzak and since he has deposited the entire amount, he is not liable for eviction.
The trial court after framing three issues including with regard to applicability of the Act, found that the Act was inapplicable as the shop was assessed for the period 1978-87 and since amounts have been paid, he was entitled to protection of section 20 (4) of the Act. The said judgment was affirmed by the appellate court.
Learned counsel for the petitioner has urged that from the replication, statement of the tenant and the two assessments orders it is clear that assuming that the shop was in existence, there was substantial addition to it and therefore in view of section 2 (2) (C) of the Act, the date of completion would be the date of the substantial addition to the building.
It is apparent from the record that upon filing of the written statement, denying that all the shops were constructed after 1981, the petitioner filed his application categorically stating that there was a tin shed hotel which was demolished and a new shop was raised and earlier there was no shop in existence. The respondent-tenant in his statement in paragraph no. 4 has admitted that when he was let out the disputed shop, there was a Kachcha construction of a hotel and thereafter about 1o to 12 shops were newly constructed by the landlord. This fact is also evident from a perusal of the assessment order of 1978-87 which shows that earlier a tin shed, cow shed and sweet shop was in existence and from the assessment order 1987-92 it is clear that 10 shops were newly erected at the same place. Therefore, even assuming that the petitioners' shop was not demolished for new construction but substantial amount of new constructions were added and therefore clause (C) would apply. However, none of the courts below have adverted itself to the applicability of clause (C). This aspect can also be examined from another angle. The petitioner says that he came in possession in 1981 when the Act had already come into force and therefore they could not have entered without an allotment order unless it was a new construction. All Acts are deemed legal unless proved otherwise. The tenant does not say that his entry was illegal.
For the reasons above, this petition succeeds and is allowed and the revisional order dated 28.5.1998 is hereby quashed and the matter is remanded to the revisioinal court to consider the issue again in accordance with the observation made hereinabove. Since it is old case, the revision may be decided expeditiously preferably within a period of three months from the date of submission of a certified copy of the order.
In the circumstances of the case, no order as to cost".
(Emphasis supplied by me) 6- After remanded before the revisional court, an application 14Ga-2 was filed by the defendant-petitioner purportedly, under Order 11 Rule 12 C.P.C. which was rejected by the court below by order dated 22.9.2016 on the ground that the revisional court does not have power to receive additional evidence.
7- Against the aforesaid order dated 22.9.2016, the defendant-petitioner filed an application under Article 227 No.8710 of 2016, which was allowed by this Court by order dated 26.10.2016, following the law laid down by a Division Bench in Virendra Singh Kushwaha v. VIIth A.D.J., Agra and others, that a Revisional Court exercising power under Section 25 of the Provincial Small Cause Court Act, has inherent power to take on record, additional evidence. The matter was remanded.
8- Pursuant to the aforesaid order, the revisional court again examined the application 14Ga-2 afresh and by order dated 6.12.2016 rejected it.
9- Against this order, the defendant-petitioner filed a petition being matter under Article 227 No.140 of 2017, which was dismissed by order dated 19.1.2017 concluding as under :
"I have given thoughtful considerations to the submission of the learned counsel for the petitioner.
As to what weight is to be attached to the evidence available on record as also whether the evidence already available on record is sufficient to disclose that the constructions which were raised subsequently made the entire building go out of the purview of the Act No. 13 of 1972, is a matter which requires adjudication by the Court which is currently seized of the matter therefore it would not be appropriate for this Court to express any opinion on the same, keeping in mind the direction given by this Court in its order dated 08.07.2010 defining the scope of the remand. Whether non production of certain documents which have been sought by the petitioner could raise an adverse inference against the plaintiff is an aspect which could be considered by the Court seized of the case. Suffice to say that the Court below has recorded cogent reasons for rejection of the prayer made by the defendant-petitioner inasmuch as compromise entered into between different parties can hardly be of any relevance in proceedings pending before the Court below. Like wise validity of the constructions is a matter not within the domain of the Court which is dealing with a suit based on landlord tenant relationship and their right inter se. Accordingly, no good reason to interfere with the order passed by the Court below is made out.
The petition is Dismissed".
10- After, the dismissal of his application 14GA-2, the aforesaid S.C.C. Revision No.236 of 1997 was heard and it was allowed by judgment dated 10.3.2017 passed by the Additional District Judge (Court No.7), Kanpur Nagar, and the matter was remanded to the Judge Small Cause Court.
11- Thereafter, the defendant-petitioner moved an amendment application under Order VI Rule 17 C.P.C. dated 13.7.2017 in S.C.C. Suit No.319 of 1991 praying for amendment in the written statement on the same line on which the application 14Ga-2 was moved by him before the revisional court, which was rejected and the order of rejection was affirmed by this Court in a petition being matter under Article 227 No.140 of 2017. This amendment application being paper no.226/4Ga was rejected by the impugned order dated 26.9.2017 passed by the Judge Small Cause Court, Kanpur Nagar, after discussing the facts and legal position including the law laid down by this Court in the case of Shiv Pujan and three others v. District Magistrate, Ambedkar Nagar, 2015 (3) ARC 572, Pawan Kumar Gupta and others v. Mohd. Shakir and others, 2015(1) ARC 108 and the judgment in the case of J. Samual and others v. Gattu Mahesh and others, (2012)2 SCC300.
12- Aggrieved with this order, the defendant-petitioner filed S.C.C. Revision No.117 of 2017 which was dismissed by the impugned order dated 15.12.2017 passed by the District Judge, Kanpur Nagar.
13- Aggrieved with these two orders regarding rejection of application No.226-C/4, this petition under Article 227 of the Constitution has been filed.
SUBMISSIONS:-
14- Learned counsel for the defendant-petitioner submits that-
(i) the amendment sought by Application No.226-C/4 is for a legal plea which can be raised at any stage and without this the controversy regarding substantial construction referable to Section 2(2) read with Explanation (1)(a) of the Act, cannot be decided.
(ii) Under Order VI Rule 17, amendment can be allowed at any stage of the proceedings to alter or amend the pleadings and as such the rejection of application 226-C/4 by the courts below is wholly arbitrary and illegal.
15- In support of his submission he relied upon judgments of Hon'ble Supreme Court in the case of Usha Balashaheb Swami and others v. Kiran Appaso Swami and others, AIR (2007)5 SCC 602 (Paragraph 15,16,17 and 18) ; Jayanti Roy v. Dass Estates Pvt. Ltd., (2002)5 SCC 175 (Paragraph No.8), Andhra Bank v. ABN Amro Bank N.V. And others, (2007)6 SCC 167 ( Paragraph Nos. 5 and 6), Mahila Ramkali Devi and others v. Nandram and others, AIR 2015 SC 2270 (Paragraph-20) and in the case of Revajeetu Builders and Developers v. Narayanaswamy and Sons and others, (2009) 10 SCC 84 (Paragraph Nos. 61 to 70).
16- Sri Manish Tandon, learned counsel for the plaintiffs-respondents submits as under :
(i) The impugned orders have been passed well in accordance with law and, therefore, it requires no interference under Article 227 of the Constitution;
(ii) The amendment application 226-C/4 is an abuse of process of law ;
(iii) The earlier application 14Ga to the same effect was moved, which was rejected and the order of rejection was upheld by this Court;
(iv) All the points as mentioned in the amendment application were also mentioned in the application 14-Ga.
(v) The attempt of the defendant-petitioner to move the amendment application is to delay the conclusion of the case which is pending from the last more than 27 years.
17- In support of his submission Sri Manish Tandon has relied upon a decision of this Court in the case of Maya Devi (Smt.) v. Shri Mithoo Lal and 3 others, 2017(2) ARC-870 (paragraph nos. 8 to 12) (Civil Revision No.166 of 2017 decided on 3.7.2017).
DISCUSSION AND FINDINGS:-
18- I have carefully considered the submissions of the learned counsel for the parties and perused the record of the petition before me.
19- The defendants-petitioners has not filed copy of the application 14-Ga. However, from the order dated 19.1.2017 passed by this Court in matters under Article 227 No.140 of 2017, the application 14-Ga was filed by the defendants-petitioners for :-
(i) a direction upon the plaintiffs to produce compromise and the decree based thereon in the case filed against Hafiz Mohd. Safi;
(ii) a direction upon plaintiffs to disclose the case number and the name of the Court in which such compromise was entered into the matter of Hafiz Mohd. Safi;
(iii) a direction upon plaintiffs to produce registered partition deed in respect of House No. 97/315, 97/316 and 100/276A and to furnish information as to in which portion of House No. 97/315 and 97/316 constructions were raised as also to disclose the current position of House No. 97/315A and further whether the complete plan of House No. 97/315A was duly sanctioned;
(iv) a direction upon the plaintiffs to produce sanctioned plan of House No. 97/315A;
(v) a direction upon the plaintiffs to produce spot verification in respect of constructions of 18 shop pertaining to House No. 97/315A and 97/316 to ascertain whether there was any change in the basic structure of the shop in question; and (vi) a direction upon the plaintiffs to produce material to show where the constructions of House No. 97/315A was raised in which month of which year and whether information of its completion was duly given to the Kanpur Development Authority and whether any certificate of completion was duly obtained.
20- The amendment application No.226-C/4 was filed by the -defendants -petitioners for the proposed amendments as under:
**izLrkfor la'kks/ku ¼v½ ;g fd izfrokn i= ds iSjk&2 ds vUr esa fuEu izdkj ls tksM+us dh vuqefr iznku dh tk,% **oknhx.kksa }kjk ;w0ih0 ,DV 13 lu~ 1972 ds rgr fuekZ.k dh dksbZ fyf[kr lwpuk dkuiqj fodkl izkf/kdj.k o uxj fuxe dks ugha nhA vr% iz'uxr bekjr ;w0ih0 ,DV 13 lu~ 1972 ds izkfo/kkuksa ls ckf/kr ugha gS] ds ckor dksbZ fLFkfr u rks okLrfodrk esa vkSj u gh dkuwuu curh gSA** ¼c½ ;g fd izfroknhx.k dh /kkjk&16 ds vUr esa fuEuor~ tksM+s tkus dh vuqefr iznku dh tk,% **oknhx.kksa ds vfHkdFkuksa ls tkfgj gksrk gS fd edku ua0 97@315,] vlslesUV iwoZ fdjk;snkj gkth eksgEen lQh ds le; ls gh FkkA vr% gkth eksgEen lQh ds fo:) nkf[ky eqdnesa dk lqygukek ,d vfr vko';d vfHkys[k gS tks fd fookfnr fcUnq ls tqM+h dM+h gS rFkk ftlds cxSj edku ua0 97@315,] ds dj fu/kkZj.k dk vfLrRo] le; o ml ij dh x;h rkehjkr dk izdkj r; djus esa fuEu fcUnqvksa dk fuLrkj.k gksuk vfr vko';d gSA edku ua0 97@315, dk dj fu/kkZj.k foHkkx }kjk dc vkoafVr gqvk] ftl izLrko o vkns'k ds vk/kkj ij vkoafVr gqvk mldh tkudkjh Hkh U;k; dh n`f"V esa vfHkys[kksa ij vkuk vfr vko';d gSA ;g Hkh xkSj ryc gS fd oknhx.k dks edku ua0 97@315 o 97@316 o 100@276, ds tqt Hkkx caVokjs ds D;k&D;k vk/kkj ij izkIr gq, gSa oknhx.k us edku uEcj 97@315 o 97@316 o 100@276, ds tqt Hkkx fdl caVokjs ds vk/kkj ij izkIr gq, gSA oknhx.k us edku uEcj 97@315 o 97@316 dks tksM+ dj ,deq'r dj fy;k gS mlls lEcfU/kr Lohd`r ekufp= ftlesa Li"V gks fd nksukas tqM+h gqbZ fcfYMax esa edku ua0 97@315,] fdl fn'kk o fgLls ,oa fdl fcfYMax dk Hkkx gSa xkSj ryc gS fd oknhx.k Loa; ds vuqlkj edku uEcj 97@315, dk vllsesaV gkth eks0 lQh ds le; ls gh pyk vk jgk gSA oknhx.kksa }kjk mijksDr vfHkdFku tokcqy tokc dh /kkjk&1 esa dgs x;s gSa vkSj mDr vfHkdFkuksa ds vk/kkj ij izfroknh }kjk dh xbZ vkifRRk ls l`ftr fcUnq dh D;k iz'uxr lEifRr ij ;w0ih0 ,DV 13 lu~ 1972 ykxw gksrk gS ;k ugha] D;k e0 ua0 97@315,] vkSj edku ua0 97@316 ,d gh bekjr esa tqM+s gq, gS vkSj fookfnr nqdku ij dfFkr rkehjkr dk dksbZ vlj ugha iM+rk ds Li"Vhdj.k ds fy, fuEu vfHkys[kksa ,oa mRrjksa dh vfr vko';drk gSA oknhx.kksa us edku ua0 97@315, dk Lohd`r Hkou ekufp=] rkehjkr o fuekZ.k dk le; ¼e; rkjh[k] eghuk o lu~½ vkSj rkehjkr iw.kZ gksus dk le; o izek.k tks dkuiqj fodkl izkf/kdj.k ls lEcfU/kr gS dk fooj.k okn i= esa gksus ds vkHkko esa ;g vekU; gS fd iz'uxr lEifRr ij ;w0ih0 ,DV 13 lu~ 1972 ykxw ugha gksrkA** 21- From the contents of the application 14-Ga and subsequent application under Order VI Rule 17 C.P.C. being Paper No.226-C/4 would show that after being unsuccessful in getting the relief sought by application 14-Ga, the defendants-petitioners has filed the amendment application 226-C/4 almost on the same line, after about 26 years of the filing of the written statement.
22- The general principle of amendment under Order VI Rule 17 C.P.C. is that courts, at any stage of the proceedings, may allow either party to alter or amend the pleadings in such manner and on such terms as may be just and proper and all those amendments must be allowed which are imperative for determining the real question in controversy between the parties. Thus, an amendment of pleadings in plaint cannot be allowed so as to alter materially or substitute the cause of action or the nature of claim. The Court always gives relief to amend the pleadings of the party, unless it is satisfied that the party applying for amendment was acting malafidely or that by his blunder he had caused injury to his opponent which cannot be compensated by an order of cost.
23- In the case of Revajeetu Builders and Developers v. Narayanaswamy and Sons and others, (2009) 10 SCC 84 (Paragraph Nos. 35 to 64), Hon'ble Supreme Court referred to the law laid down by it in L.J. Leach & Co. Ltd. v. Jardine Skinner & Co., AIR 1957 SC 357, Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, AIR 1957 SC 363, Purushottam Umedbhai & Co.v. Manilal & Sons, AIR 1961 325, Ganesh Trading Co. v. Moji Ram, (1978)2 SCC 91, Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala,AIR 1964 SC 11, Jai Jai Ram Manohar Lal v. Natioinal Building Matrial Supply, (1969) 1 SCC 869, Ganga Bai v. Vijay Kumar (1974) 2 SCC 393, Haridas Aildas Thadani v. Godrej Rustom Kermani (1984) 1 SCC 668, B.K. Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712 and in the case of Suraj Prakash Bhasin v. Raj Rani Bhasin, (1981) 3 SCC 652 and after emphasizing on the conditions of grant of amendment namely, whether the amendment is necessary to decide real controversy, no prejudice or injustice is caused to the other party and compensation in terms of cost; concluded as under :
Whether amendment is necessary to decide real controversy "58. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts' discretion in grant or refusal of the amendment.
No prejudice or injustice to other party
59. The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to 22 (1981) 3 SCC 652 other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side. The Courts have very wide discretion in the matter of amendment of pleadings but court's powers must be exercised judiciously and with great care.
60. In Ganga Bai case this Court has rightly observed (SCC p. 399, para 22) "22...The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court."
(Emphasis supplied ) COSTS
61. The Courts have consistently laid down that for unnecessary delay and inconvenience, the opposite party must be compensated with costs. The imposition of costs is an important judicial exercise particularly when the courts deal with the cases of amendment. The costs cannot and should not be imposed arbitrarily. In our view, the following parameters must be taken into consideration while imposing the costs. These factors are illustrative in nature and not exhaustive.
(i) At what stage the amendment was sought.
(ii) While imposing the costs, it should be taken into consideration whether the amendment has been sought at a pre-trial or post-trial stage.
(iii)The financial benefit derived by one party at the cost of other party should be properly calculated in terms of money and the costs be awarded accordingly.
(iv) The imposition of costs should not be symbolic but realistic.
(v) The delay and inconvenience caused to the opposite side must be clearly evaluated in terms of additional and extra court hearings compelling the opposite party to bear the extra costs.
(vi) In case of appeal to higher courts, the victim of amendment is compelled to bear considerable additional costs.
All these aspects must be carefully taken into consideration while awarding the costs.
62. The purpose of imposing costs is to:
a) discourage mala fide amendments designed to delay the legal proceedings;
b) Compensate the other party for the delay and the inconvenience caused;
c) Compensate the other party for avoidable expenses on the litigation which had to be incurred by opposite party for opposing the amendment; and
d) to send a clear message that the parties have to be careful while drafting the original pleadings.
Factors to be taken into consideration while dealing with applications for amendments
63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment :
(1) Whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) Whether the application for amendment is bona fide or mala fide;
(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.
64.The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments".
24- In the case of Usha Balashaheb Swami and others v. Kiran Appaso Swami and others, AIR (2007)5 SCC 602, Hon'ble Supreme Court considered the principles for amendment in plaint and written statement and held as under :
"It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable".
25- In the case of Mahila Ramkali Devi and others v. Nandram and others, AIR 2015 SC 2270, Hon'ble Supreme Court held as under :
"20. It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The Court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting malafide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost".
(Emphasis supplied by me) 26- In the case of Mahila Ramkali Devi and others (supra), Hon'ble Supreme Court clearly held that the Court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting malafide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost.
27- In the case of Ganga Bai v. Vijay Kumar (supra), Hon'ble Supreme Court while rejecting an amendment application filed after more than seven years to challenge a preliminary decree; mandated that undisputedly power to allow an amendment is wide and may at any stage be appropriately exercised in the interest of justice notwithstanding the law of limitation, but the exercise of such far-reaching discretionary power is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the Court.
28- In the case of Smt. Maya Devi (supra) this Court considered the provisions of Order VI Rule 17 C.P.C. and held as under :
"8.In order to find out whether the application of the defendant under Order VI Rule 17 for amendment of written statement was bonafide and sustainable at the appellate stage of the second original suit stage or not, it is useful to refer to the relevant provisions of Order 6 Rule 17 C.P.C. as under:
"17. 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."
9. This Rule was omitted by the Code of Civil Procedure (Amendment) Act, 1999. However, before the enforcement of the Code of Civil Procedure (Amendment) Act, 1999, the original rule was substituted and restored with an additional proviso. The proviso limits the power to allow amendment after the commencement of trial but grants discretion to the court to allow amendment if it feels that the party could not have raised the matter before the commencement of trial in spite of due diligence. It is true that the power to allow amendment should be liberally exercised. The liberal principles which guide the exercise of discretion in allowing the amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be granted, while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon the opposite party under pretence of amendment.
10. The proviso to Order VI Rule 17 C.P.C. specifically provides that no application for amendment shall be allowed after the trial is commenced 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.
29. In the case of Chander Kanta Bansal Vs. Rajinder Singh Anand1 Hon'ble Supreme Court considered the meaning of the word "due diligence" used in the proviso to Order VI Rule 17 C.P.C. and held as under:
"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 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 (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.
17. It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial. As mentioned earlier, in the case on hand, the application itself came to be filed only after 18 years and till the death of her first son Sunit Gupta, Chartered Accountant, had not taken any step about the so- called agreement. Even after his death in the year 1998, the petition was filed only in 2004. The explanation offered by the defendant cannot be accepted since she did not mention anything when she was examined as witness.
18. As rightly referred to by the High Court in Union of India Vs. Pramod Gupta this Court cautioned that delay and laches on the part of the parties to the proceedings would also be a relevant factor for allowing or disallowing an application for amendment of the pleadings."
(Emphasis supplied by me)
30. In the case of J. Samuel & others Vs. Gattu Mhesh & others, Hon'ble Supreme Court explained the scope of the words "due diligence" used in proviso to Order VI Rule 17 and held as under:
"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 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.
21. In the given facts, there is a clear lack of `due diligence' and the mistake committed certainly does not come within the preview 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 errors due to mechanical failure or slips of the hand or 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 entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code.
22. The claim of typographical error/mistake is baseless and cannot be accepted. In fact, had the person who prepared the plaint, signed and verifiedthe 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 rightly 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.
(Emphasis supplied by me) 31- Applying on the facts of the present case, the principles of law laid down in the afore-noted judgments, I find that the amendment sought by the defendant-petitioner after about 26 years of filing of the written statement and rejection of his application 14-Ga, was not bonafide, but it was malafide attempt with an intent to delay disposal of the case. Under the circumstances, the rejection of the amendment application is wholly justified.
32- In view of the aforesaid discussions, the writ petition is dismissed with costs of Rs.25,000/- which shall be deposited by the defendant-petitioner with the court below within four weeks from today and the plaintiffs-respondents shall be entitled to withdraw it.
Order Date :- 11.1.2018 Ak/