Bombay High Court
The General Manager, Central Railway ... vs Mehmooda Shikshan And Mahila Gramin ... on 8 June, 2017
wp.5769.14.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.5769 OF 2014
01] The General Manager, Central Railway,
Chhatrapati Shivaji Terminus, Mumbai,
through D.R.M., Central Railway,
Kingsway, Nagpur.
02] The Divisional Railway Manager (D.R.M.),
Central Railway, Jaisthamb Chowk,
Kingsway, Nagpur.
03] The Senior Divisional Engineer (Cordi),
Central Railway, Jaisthamb Chowk,
Kingsway, Nagpur. .... Petitioners
-- Versus -
Mehmooda Shikshan & Mahila Gramin
Bahuuddeshiya Sanstha, Nagpur,
having its office at 690-691,
Golcha Marg, Sadar Bazar, Nagpur,
through its President
Mst. Saba Athar w/o Mohammed Athar,
aged about 33 years,
Occ. President of the Appellant,
Golcha Marg, Sadar, Nagpur. .... Respondent
Shri P.S. Lambat, Advocate for the Petitioners.
Shri Masood Shareef, Advocate for the Respondents.
CORAM : KUM. INDIRA JAIN, J.
DATE : JUNE 8, 2017.
ORAL JUDGMENT :-
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Rule. Rule made returnable forthwith. Heard finally with the consent of learned Counsel for the parties 02] This petition takes an exception to the order passed on Exh.114 by the learned 3rd Joint Civil Judge, Senior Division, Nagpur on 28/08/2014 thereby rejecting the application for amendment filed by the petitioners/defendants under Order VI Rule 17 of the Code of Civil Procedure.
03] The facts giving rise to the petition may be stated in nutshell as under :
i. Respondent instituted R.C.S. No.456/2009 against the petitioners for declaration and perpetual injunction. In pursuance to the summons issued by the trial court, petitioners/defendants appeared and contested the suit by filing their written statement. Issues came to be framed and the suit was then fixed for evidence of the parties.
ii. After the plaintiff closed its evidence, defendants on 30/10/2012 moved an application for amendment ::: Uploaded on - 19/06/2017 ::: Downloaded on - 28/08/2017 05:23:44 ::: wp.5769.14.jud 3 contending therein that plaintiff-society had encroached upon the land of Railways. The application was objected by plaintiff. Vide order dated 28/08/2014, trial court refused to grant proposed amendment. Being aggrieved thereof, defendants have preferred the present petition.
04] Heard Shri P.S. Lambat, learned Counsel for petitioners and Shri Masood Shareef, learned Counsel for respondent at length. Learned Counsel for petitioners vehemently contended that measurement of the land was taken later on during pendency of suit and during measurement, it was found that plaintiff encroached upon the land of Railways. He submitted that in view of subsequent developments, application for amendment was moved. The submission is that proposed amendment was essential to decide the controversy between the parties. It is submitted that in case amendment would have been allowed, no prejudice would have been caused to plaintiff as plaintiff had an opportunity to cross-examine the witnesses.
In support of submissions, learned Counsel for petitioners placed vehement reliance on -::: Uploaded on - 19/06/2017 ::: Downloaded on - 28/08/2017 05:23:44 ::: wp.5769.14.jud 4
i. Baldev Singh and others vs. Manohar Singh and another - (2006) 6 SCC 498.
ii. North Eastern Railway Administration, Gorakhpur vs. Bhagwan Das [Dead] by L.Rs. - (2008) 8 SCC 511.
iii. State of Madhya Pradesh vs. Union of India and another - (2011) 12 SCC 268.
iv. Samuel and others vs. Gattu Mahesh and others - (2012) 2 SCC 300.
v. Abdul Rehman and another vs. Mohd. Ruldu and others - (2012) 11 SCC 341.
05] Per contra, learned Counsel for respondent submitted that application for amendment came to be filed after the closure of evidence by the plaintiff and defendants were not diligent. It is submitted that previous application [Exh.56] filed on the same grounds came to be withdrawn and in view of withdrawal of the first application, successive application on same facts was barred by law. Reliance is placed on the proviso to Order 6 Rule 17 of C.P.C. and it is submitted that amendment application was rightly rejected by the trial court as defendants were not diligent in bringing amendment on record. ::: Uploaded on - 19/06/2017 ::: Downloaded on - 28/08/2017 05:23:45 ::: wp.5769.14.jud 5 06] Before considering the acceptability or otherwise of the reasonings recorded by the trial court, it is useful to refer Order 6 Rule 17 of C.P.C. It reads thus -
"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."
07] From the proviso substituted by Act 22 of 2002, it is clear that application for amendment shall not be allowed after the trial has commenced, unless the court comes to the conclusion that inspite of due diligence, party could not have raised matter before commencement of trial. In this connection learned Counsel for respondent relied upon the decisions in J. Samueall and others vs. Gattu Mahesh and others - ::: Uploaded on - 19/06/2017 ::: Downloaded on - 28/08/2017 05:23:45 ::: wp.5769.14.jud 6 (2012) 2 SCC 300 and Abdul Rehman and another vs. Mohd. Ruldu and others - (2012) 11 SCC 341 and submitted that test to determine due diligence is laid down in these authorities and considering the test, in the given facts of the present case, petitioners were not diligent in filing the application for amendment.
08] In paragraphs 19 and 20 of the judgment in Samueall and others vs. Gattu Mahesh and others (supra), the Hon'ble Supreme Court observed thus :
"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.::: Uploaded on - 19/06/2017 ::: Downloaded on - 28/08/2017 05:23:45 ::: wp.5769.14.jud 7
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."
09] In the present case, it is not in dispute that application [Exh.56] was moved by the defendants for amendment on 06/11/2011. Later on this application being 'not pressed' was disposed of. The withdrawal of application was unconditional. It can be seen from copies of applications [Exhs.56 and 114] that on the identical pleadings amendment was sought later on by the defendants. No reason is assigned for filing second application after unconditional withdrawal of first application.
10] It is not in dispute that trial had already commenced. Plaintiff's evidence was closed. Defendants have commenced their evidence and the same was in process. There is no whisper in application [Exh.114] even to remotely indicate that defendants despite due diligence could not move application before the trial commenced. The proviso to Order 6 Rule 17 ::: Uploaded on - 19/06/2017 ::: Downloaded on - 28/08/2017 05:23:45 ::: wp.5769.14.jud 8 C.P.C., therefore, comes into play and the trial court has rightly rejected the application on the ground that defendants were not diligent in moving application for amendment after the commencement of trial. No jurisdictional error or error of law is noticed in the impugned order. No interference is, therefore, warranted in writ jurisdiction. Hence the following order :
ORDER I. Writ Petition No.5769/2014 stands dismissed.
II. Rule is discharged with no order as to costs.
*sdw JUDGE
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