Allahabad High Court
M/S J.A. Construction vs Sardar Kuldeep Singh And 3 Others on 3 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2028, (2019) 6 ALL WC 6350, (2020) 138 ALL LR 6, 2020 (1) ADJ 11 NOC, (2020) 1 ALL RENTCAS 470, (2020) 206 ALLINDCAS 908
Author: Y.K. Srivastava
Bench: Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 40 Case :- MATTERS UNDER ARTICLE 227 No. - 8624 of 2019 Petitioner :- M/S J.A. Construction Respondent :- Sardar Kuldeep Singh And 3 Others Counsel for Petitioner :- Abu Bakht,Nitin Jain,Pramod Kumar Jain (Senior Adv.) Counsel for Respondent :- Shailendra Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard Sri Abu Bakht, learned counsel for the petitioner and Sri Shailendra, learned counsel appearing for respondent nos.1 and 2.
2. The present petition has been filed against the order dated 01.05.2018 passed by the Additional District Judge, Court No.8, Kanpur Nagar in Civil Appeal No.139 of 2016 rejecting the amendment application whereby certain amendments had been sought by the petitioner-defendant in his written statement. The petitioner also seeks to assail the order dated 17.09.2019 whereby another amendment application (Application No.132Ga) again seeking certain amendments in the written statement filed by the petitioner-defendant has also been rejected.
3. Contention of the learned counsel for the petitioner is that the amendments in question were necessitated due to the fact that certain legal points came to the knowledge of the counsel of the petitioner-defendant subsequently and since the said points had not been mentioned in the written statement they were necessary and to be raised at the stage of appeal.
4. Per contra, learned counsel for the respondent-plaintiffs submits that the original suit which had been filed in the year 2008 had been decreed vide judgment dated 29.05.2015 and thereafter the petitioner-defendant had preferred an appeal in the year 2016 and as such the amendments which are being sought in the written statement at the stage of appeal are only with a view to linger the proceedings and the amendment applications have rightly been rejected.
5. The order dated 01.05.2018 whereby the first amendment application of the petitioner has been rejected takes note of the fact that the amendments which were sought were basically with a view to raise a plea with regard to insufficiency of court fee and that the trial court while deciding the suit had framed a specific issue as to whether the suit was undervalued and there was deficiency of court fee and the said issue had been decided by an order dated 14.10.2010 answering the same in the negative and accordingly it was not necessary for the petitioner to seek an amendment in his written statement raising the issue at the stage of appeal. The court below has however held that the legal submissions on the issue of valuation of the suit and the court fee can be raised by the petitioner at the stage of hearing of the appeal.
6. The order dated 17.09.2019 whereby the second amendment application moved by the petitioner has been rejected takes notice of the fact that an earlier amendment application filed by the petitioner on 28.03.2017 wherein similar amendments had been sought had already been rejected by an order dated 01.05.2018. The court below has also taken note of the fact that the suit had been decreed on 25.05.2015 and during the pendency of the suit no such amendment had been sought by the petitioner-defendant and the filing of the amendment application at the belated stage of appeal was clearly with a view to delay the proceedings and accordingly the same was rejected and the matter was posted for hearing.
7. The rival contentions which fall for consideration relate to the scope of the powers of the Court to allow amendment of pleadings under Order VI Rule 17 of the Civil Procedure Code, 19081.
8. The purpose and object of rules relating to pleadings being to decide the real controversy between the parties and not to punish them for their negligence, the provisions relating to the amendment of pleadings are usually to be liberally construed with a view to promoting the ends of justice and not for defeating them, and consequently the courts generally allow all amendments that may be necessary for determining the real question in controversy between the parties.
9. The proviso to Rule 17 under Order VI, as inserted by the Code of Civil Procedure (Amendment) Act, 20022, however, restricts and curtails the power of the court to allow amendment of pleadings by enacting that no application for amendment is to 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 the trial.
10. The proviso to Rule 17, as per the Amendment Act, 2002, has introduced the "due diligence" test, which requires that the court must be satisfied that in spite of "due diligence" the party could not discover the ground pleaded in the amendment. The term "due diligence" has been specifically used so as to provide a test for determining whether to exercise the discretion in situations where amendment is being sought after commencement of the trial.
11. The object of introducing the proviso to Rule 17 was considered in the case of Chander Kanta Bansal Vs. Rajinder Singh Anand3, and it was held as follows:-
"11. ...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.
12. With a view to shorten the litigation and speed up the trial of cases Rule 17 was omitted by amending Act 46 of 1999. This rule had been on the statute for ages and there was hardly a suit or proceeding where this provision had not been used. That was the reason it evoked much controversy leading to protest all over the country. Thereafter, the Rule was restored in its original form by amending Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to some extent. The new proviso lays down that no application for amendment shall be allowed after the commencement of trial, 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. But whether a party has acted with due diligence or not would depend upon the facts and circumstances of each case. This would, to some extent, limit the scope of amendment to pleadings, but would still vest enough powers in courts to deal with the unforeseen situations whenever they arise.
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 other's 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.
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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 (18th 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 13-A) "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...."
12. The provisions contained under Order VI Rule 17 proviso as introduced in the year 2002 again came up for consideration in the case of J. Samuel Vs. Gattu Mahesh & Ors.4 wherein the principles relating to allowing amendments under Order VI Rule 17 were reiterated and the object of the proviso and the meaning and significance of "due diligence" of the parties seeking amendment was also stated. The observations made in the judgment in this regard as follows:-
"18. The primary aim of the court is to try the case on its merits 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 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.
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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23. ...The entire object of the amendment to Order VI 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 other's case. It also helps checking the delays in filing the applications. (Vide Aniglase Yohannan v. Ramlatha (2005) 7 SCC 534, Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N. (2006) 12 SCC 1, Chander Kanta Bansal v. Rajinder Singh Anand (2008) 5 SCC 117, Rajkumar Gurawara v. S.K. Sarwagi and Co. (P) Ltd. (2008) 14 SCC 364, Vidyabai v. Padmalatha (2009) 2 SCC 409 : (2009) 1 SCC (Civ) 563 and Man Kaur v. Hartar Singh Sangha (2010) 10 SCC 512 : (2010) 4 SCC (Civ) 239)."
13. Reference may also be had to the judgment in the case of Revajeetu Builders and Developers Vs. Narayanaswami and Sons & Ors.5 wherein some of the important factors which may be kept in mind while dealing with an application filed under Order VI Rule 17 have been enumerated in the following terms:-
"63. On critically analysing 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 6 Rule 17. These are only illustrative and not exhaustive.
64. The decision on an application made under Order 6 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."
14. In a recent judgment in the case of M. Revanna Vs. Anjanamma & Ors.6, it has been held that after commencement of trial amendment of pleadings is not permissible except under conditions stated in the proviso and the burden is on the person seeking the amendment after commencement of trial to show "due diligence" on his part as contemplated under the proviso. The relevant observations in the judgment are as follows:-
"7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from being 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 the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money."
15. A similar view was taken in the case of Vijay Hathising Shah & Anr. Vs. Gitaben Parshottamdas Mukhi & Ors.7 wherein the order passed by the High Court setting aside the order of the Trial Court rejecting the amendment application was held to be unsustainable and the order of the Trial Court was restored. The observations made in the judgment are as follows:-
"9. In our view, the trial court was right in rejecting the application. This we say for more than one reason. First, it was wholly belated; second, Respondent 1-plaintiff filed the application for amendment of the plaint when the trial in the suit was almost over and the case was fixed for final arguments; and third, the suit could still be decided even without there being any necessity to seek any amendment in the plaint. In our view, amendment in the plaint was not really required for determination of the issues in the suit."
16. The aforementioned legal position has been reiterated in recent judgments of this Court in Madhaw Asharam Charitable Trust Hanuman Mandir & Anr. Vs. Shri Shamshul Khuda Khan8 and Hari Narayan Vs. Shanti Devi9.
17. In the case at hand the court below upon due consideration of the facts of the case has come to the conclusion that the amendments which were being sought to come at the stage of appeal were not bona fide and the same were only with a view to delay the proceedings.
18. No material has been placed on record on behalf of the petitioner to discharge the burden that in spite of due diligence the amendments which are being sought could not have been sought during the pendency of the proceedings at the stage of trial.
19. This Court may also take notice of the fact that the power of superintendence conferred under Article 227, is to be exercised most sparingly and within the parameters which have been summarized in the case of Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil10, and also in the case of Radhey Shyam & Anr. Vs. Chhabi Nath & Ors.11.
20. Counsel for the petitioner has not been able to point out any material error or illegality in the orders passed by the court below so as to warrant interference in exercise of power under Article 227 of the Constitution of India.
21. The petition lacks merit and is accordingly dismissed.
Order Date :- 3.12.2019 Shahroz (Dr. Y.K. Srivastava,J.)