Allahabad High Court
Shri Firoz Uddin And 4 Others vs Shri Anwar Uddin on 8 May, 2023
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:98352 A.F.R. Court No. - 2 Case :- MATTERS UNDER ARTICLE 227 No. - 5213 of 2023 Petit ioner :- Shri Firoz Uddin And 4 Others Respondent :- Shri Anwar Uddin Counsel for Petitioner :- Jata Shankar Pandey Counsel for Respondent :- Ravi Shanker Pathak Hon'ble Neeraj Tiwari,J.
1. Heard learned counsel for the petitioners and Sri Ravi Shanker Pathak, learned counsel for the respondent.
2. Present petition has been filed with following prayer;
"It is, therefore, Most Respectfully prayed that this Hon'ble Court may kindly be pleased to stay the effect and operation of the impugned order dated 11.04.2023 passed by Prescribed Authority/ JSCC Agra in P.A. Case No. 42 of 2015, Anwar Uddin and Firoz Uddin (since deceased) and others."
3. Since only legal question is involved, therefore, with the consent of the parties, without inviting for affidavits, the matter is being decided at the admission stage itself.
4. Learned counsel for the petitioners submitted that P.A. Case No. 42 of 2015 was filed by plaintiff- respondent. As petitioners- defendants had not appeared and trial Court vide order dated 04.01.2017 proceeded ex parte, upon which recall a application was filed, which was rejected vide order dated 03.07.2018. Both orders were challenged before this Court by filing Matters Under Article 227 No. 5779 of 2018, which was disposed of vide order dated 19.12.2022 with direction to the petitioner to deposit the cost of Rs. 1500/- on or before the 10th of January, 2023 and further held that his written statement, which is already on record, will be taken into consideration and he would also file his affidavit of evidence by 10th of January, 2023. He next submitted that in compliance of order dated 19.12.2022, petitioners have deposited Rs. 1500/- on 06.01.2023 and the written statement was also taken on record.
5. He further submitted that after receiving the affidavit of applicant, petitioners have filed application under Order VI Rule 17 CPC for amendment of written statement, which was rejected on the ground that said amendment is already part of written statement and secondly, petitioners- defendants have not given any proper reason as to why the said facts are not incorporated in written statement filed earlier. Petitioners have taken specific ground in their application under Order VI Rule 17 CPC that earlier written statement was filed by Sri R.P. Singh Dhakare, Advocate and after engaging new Advocate, Sri Rajat Kumar Saraswat, petitioners have properly gone through the paper book and suggested for amendment. Therefore, under such facts of the case, it is required on the part of trial Court to allow the amendment.
6. He next submitted that while dealing with amendment in written statement, Court should have been more liberal. In support of his contention, he has placed reliance upon the judgment of Apex Court in the matter of Usha Balashaheb Swami & others Vs. Kiran Appaso Swami & others; 2007 (3) Supreme (SC) 582.
7. Per contra, Sri Ravi Shanker Pathak, learned counsel for the respondent has vehemently opposed the submissions raised by learned counsel for the petitioners and submitted that there is no dispute on the point that while dealing with amendment application in written statement, Court should have been more liberal, but he firmly submitted that while filing application after commencement of trial, it is mandatory requirement to show the efforts so made by the petitioners-defendants and prove that even after due diligence, they were not having knowledge of those facts. Mere change of counsel cannot be a ground to allow the amendment application at a very belated stage and in the present case, even after submission of affidavit of witness by the opposite party filing of amendment application is nothing but dilatory tactics adopted by the petitioners-defendants. In support of his contention, he has placed reliance upon the judgments of this Court in Hari Shanker and 5 others Vs. Bhagwati Prasad Mishra; 2014 0 Supreme (All) 3127, decided on 31.10.2014, Sagwa Singh Tyagi Vs. The Additional District Judge and 6 others; 2014 0 Supreme (All) 3433, decided on 11.11.2014, Hari Narayan v. Shanti Devi; 2019 SCC OnLine All 2380, decided on 28.05.2019, and Matter Under Article 227 No. 2658 of 2023 (Ramesh Duggal Alias Pappu Vs. Pt. Ram Shanker Mishra Trust Chief Office), decided on 05.05.2023.
8. I have considered the rival submissions raised by learned counsel for the parties and perused the records, provision of Order VI Rule 17 CPC as well as judgments relied upon.
9. Issue before this Court is as to whether while deciding the amendment application for written statement, issue of due diligence has to be taken care of or not ?
10. Present issue is arising out of order VI Rule 17 CPC, therefore, the same is being quoted below;
"17. Amendment of pleadings.-The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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."
11. Facts of the case are not disputed that amendment application was filed after commencement of trial, receiving the affidavits of plaintiff and submission of affidavits of defendants also. In the amendment application, the only ground taken is that due to change of counsel, petitioners want to bring new facts on record and for that reason, they have filed application under Order VI Rule 17 CPC for amendment. Except this, there is no reason about the due diligence so made by them for bringing the facts on record. The amendment application was filed for adding additional facts as later on pointed out by the new counsel so engaged.
12. I have perused the judgment of Apex Court in the matter of Usha Balashaheb Swami (supra). Relevant paragraphs of the said judgment are quoted below;
"19. It is now well-settled by various decisions of this Court as well as those by High Courts that the courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bonafide one. In this connection, the observation of the Privy Council in the case of Ma Shwe Mya v. Maung Mo Hnaung [AIR 1922 P.C. 249] may be taken note of. The Privy Council observed:
"All rules of courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject-matter of the suit. (Underlining is ours)"
20. 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.
21. Such being the settled law, we must hold that in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case [see B.K. Nrayana Pillai v. Parameswaran Pillai (2000(1) SCC 712) and Baldev Singh & Ors v. Manohar Singh (2006 (6) SCC 498)]. Even the decision relied on by the plaintiff in Modi Spinning (supra) clearly recognises that inconsistent pleas can be taken in the pleadings. In this context, we may also refer to the decision of this Court in Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (Dead) [1995 Supp (3) SCC 179]. In that case, the defendant had initially taken up the stand that he was a joint tenant along with others. Subsequently, he submitted that he was a licensee for monetary consideration who was deemed to be a tenant as per the provisions of Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This Court held that the defendant could have validly taken such an inconsistent defence. While allowing the amendment of the written statement, this Court observed in Basavan Jaggu Dhobi's case (supra) as follows :-
"As regards the first contention, we are afraid that the courts below have gone wrong in holding that it is not open to the defendant to amend his statement under Order 6 Rule 17 CPC by taking a contrary stand than was stated originally in the written statement. This is opposed to the settled law open to a defendant to take even contrary stands or contradictory stands, the cause of action is not in any manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action."
22. As we have already noted herein earlier that in allowing the amendment of the written statement a liberal approach is a general view when admittedly in the event of allowing the amendment the other party can be compensated in money. Technicality of law should not be permitted to hamper the Courts in the administration of justice between the parties. In the case of L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357], this Court observed "that the Courts are more generous in allowing amendment of the written statement as the question of prejudice is less likely to operate in that event". In that case this Court also held "that the defendant has right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to serious injustice."
23. Keeping these principles in mind, namely, that in a case of amendment of a written statement the Courts would be more liberal in allowing than that of a plaint as the question of prejudice would be far less in the former than in the latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed, we may now proceed to consider whether the High Court was justified in rejecting the application for amendment of the written statement.
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32. For the reasons aforesaid, the appeal is allowed and the order of the High Court rejecting the prayer for amendment of the written statement is set aside. The application for amendment of the written statement thus stands allowed. The trial court is now directed to dispose of the suit at the earliest possible time preferably within six months from the date of communication of this order without granting any unnecessary adjournment to either of the parties."
13. From the perusal of aforesaid judgment, there is no doubt that Court is of the firm view that while deciding the amendment application for amendment in written statement, Court must take some liberal view. Even in case of inconsistent view or alternative plea, the same should have been allowed, but in the said judgment, at no point of time, there is any opinion of the Court that proviso of due diligence shall not be taken into consideration while deciding the application under Order VI Rule 17 CPC for amendment in written statement. In present case, there is no explanation about the due diligence except the change of counsel.
14. I have also perused the judgment passed in Hari Shanker (Supra), in which, Court has considered about the concept of 'due diligence'. Relevant paragraphs of the said judgment are quoted below:-
"9. Supreme Court in Modi Spinning & Weaving Mills Company Ltd. Vs. Ladha Ram, AIR 1977 SC 680, held that the defendants cannot be allowed to change completely the case made in paras 25 and 26 of the written statement and substitute an entirely different and new case. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paras 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. Same view has been taken in Heera Lal Vs. Kalyan Mal, (1998) 1 SCC 278, Gautam Swarup Vs. Leela Jetly, (2008) 7 SCC 85, Sumesh Singh Vs. Phoolan Devi, (2009) 12 SCC 689 and Vishwanath Agrawal Vs. Savitri Bera, (2009) 15 SCC 693.
In B.K. Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712, Supreme Court held that the principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The courts are more generous in allowing the amendment of the written statement as the question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates (sic results) in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement.
Thus in view of the authoritative pronouncements of Supreme Court, the case law relied upon by the counsel for the petitioners cannot be followed.
11. Now the next question arises as to whether the proposed amendment can be allowed in view of Proviso to Order VI Rule 17 C.P.C. The defendant alleged that the fact relating to the proposed amendment was noticed at the time of preparation of the appeal for final arguments on 03.08.2014.
12. Supreme Court in Salem Advocate Bar Assn. (II) v. Union of India, (2005) 6 SCC 344, held that 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 added proviso to prevent application for amendment 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 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.
13. The phrase "due diligence" came for consideration before Supreme Court in Chander Kanta Bansal v. Rajinder Singh Anand, AIR 2008 SC 2234, in which it has been held that the words "due diligence" have not been defined in the Code. According to Oxford Dictionary (Edn. 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 Edn.), "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 Edn. 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.
14. Supreme Court again in J. Samuel v. Gattu Mahesh, (2012) 2 SCC 300, held that 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. 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. 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. Similar view was taken in Vidyabai Vs. Padma Latha, (2009) 2 SCC 409, Sushil Kumar Jain Vs. Manoj Kumar, (2009) 14 SCC 38 and Abdul Rehman Vs. Mohd. Ruldu, (2012) 11 SCC 341.
15. The written statement was drafted by an advocate after reading the plaint. After legal advice, it cannot be said that in exercise of "due diligence" the fact sought to be brought in the pleading by way of amendment was not in the knowledge of the defendant. A distinction has to be drawn between 'due diligence' and 'negligence'. The case of the defendants falls in the category of 'negligence' and not 'due diligence'. Trial Court rightly rejected the amendment application, as Proviso to Order VI Rule 17 C.P.C., now castes a rider on the power of the Court in allowing amendment application. "
15. This issue was again considered by this Court in Sagwa Singh Tyagi (Supra). Relevant paragraphs of the said judgment are quoted below:-
"13. In J. Samuel and others v. Gattu Mahesh and others: (2012) 2 SCC 300, the Court observed that, on a proper interpretation of proviso to Rule 17, Order 6 CPC, the party has to satisfy the Court that he could not discover that ground which was pleaded by proposed amendment of the plaint, despite due diligence. No doubt, Rule 17 confers power on the Court to amend pleading at any stage of the proceedings. However, the proviso restricts that power, once the trial has commenced. Unless the Court is satisfied that there is a reasonable cause for allowing amendment, normally the Court has to reject such requests. Due diligence is the idea behind such restriction, that is, a reasonable investigation is necessary before certain kinds of relief are requested. Undoubtedly, diligent efforts are a requirement for a party seeking to use adjudicatory mechanism to attain an undisputed relief. An advocate representing someone has to engage himself in due diligence to determine that the representations made by him are factually correct and sufficient. The term due diligence is specifically used in the Court so as to provide a test for determining whether to exercise a distinction in a situation of requested amendment after the commencement of trial. A party requesting a relief stemming out of a claim is required to exercise due diligence. It is a requirement which cannot be dispensed with. The term 'due diligence' determines the scope of parties' constructive knowledge, and is critical to the outcome of the suit. The Court also observed that decisions given before insertion of proviso to Order 6, Rule 17 CPC may not help the parties to decide cases after such amendment has been inserted in CPC. The entire object of amendment to Order 6, Rule 17 , as introduced in the year 2002, is to stifle filing of application for amendment of a pleading, subsequent to the commencement of trial court, to avoid surprises and that the parties had sufficient knowledge of other's case. It also helps checking delays in filing applications. The Court in making the aforesaid observation relied on its earlier decisions in Aniglase Yohannan v. Ramlatha and others: (2005) 7 SCC 534; Chander Kanta Bansal v. Rajinder Singh Anand: (2008) 5 SCC 117; Rajkumar Gurawara (Dead) through LRs v. S.K. Sarwagi and Company Private Limited and another: (2008) 14 SCC 364; Vidyabai and others v. Padmalatha and another: (2009) 2 SCC 409; and Man Kaur (Dead) by LRs v. Hartar Singh Sangha, (2010) 10 SCC 512.
14. The view, I have taken above, has also been reiterated by this Court in Suraj Prakash v. Waqf Khudaband Tala Mausooma, 2012(11) ADJ 524 and Civil Misc. Writ Petition No. 61790 of 2012 (Shanti Swaroop v. Smt. Rama Sharma) decided on 29.11.2012.
15. In the present case, the amendment has been sought after the trial has commenced, without satisfying the Court as to why assertion of such facts could not be made with due diligence before commencement of trial when initial pleadings were filed before trial court. On this aspect virtually there is no averment. It cannot be said that there is a proper justification stated to do away the rider imposed by proviso to Order 6, Rule 17 CPC. Therefore, I have no hesitation in holding that the courts below have rightly rejected amendment sought by the petitioner. No legal or otherwise error can be said to have been committed by Court below so as to justify interference by this Court under Article 226 of the Constitution."
16. This issue was also subject matter of this Court in Hari Narayan (Supra). Relevant paragraphs are quoted below:-
"3. Contention of the learned counsel for the revisionist is that under Order VI Rule 17 the court may at any stage of proceedings allow the amendment of pleadings so as to determine the real question in controversy between the parties, and the trial court has rejected the amendment application without recording any finding to arrive at a conclusion that in spite of due diligence the defendant could not have sought the amendment before the commencement of the trial.
7. The proviso to Rule 17 under Order VI, as inserted by the Code of Civil Procedure (Amendment) Act, 2002, 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.
8. 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.
9. The provisions contained under Order VI Rule 17 proviso as introduced in the year 2002 came up for consideration in the case of J. Samuel Vs. Gattu Mahesh & Ors.2 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 has also been 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.
x x x x x
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]."
10. Reference may also be had to the judgment in the case of Revajeetu Builders and Developers Vs. Narayanaswami and Sons & Ors.1 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."
11. In a recent judgment in the case of M. Ravanna Vs. Anjanamma3, 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."
12. In the case at hand, the court below upon due consideration of the facts of the case has come to the conclusion that the amendment which was being sought was not imperative for determining the real question in controversy between the parties, and also that the same was barred by the proviso to Order VI Rule 17 CPC which curtails the discretion to allow amendment of pleadings after the trial has commenced, and introduces the "due diligence" test in terms whereof the burden is on the person seeking the amendment after commencement of trial to show that in spite of "due diligence" such an amendment could not have been sought earlier, and as such the order passed by the trial court cannot be faulted with. "
17. This matter was again considered by this Court in the case of Ramesh Duggal Alias Pappu (supra). Relevant paragraph is quoted below;
"16. From the perusal of Order VI Rule 17 of CPC, it is clear that amendment application may be allowed before commencement of trial, but in case, Court is of the view that in spite of due diligence, party could not have raised the matter before the commencement of trial, application may be allowed. In the present case, it is required on the part of Court to see about the due diligence made by petitioner-defendant to file amendment application based upon date of knowledge of trust deed and also the effect of amendment upon the judgment and decree of suit, if allowed.
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20. This case is not a case of delay as the trust deed was well in existence from the date of filing of written statement and as per admission of petitioner-defendant also, it is in his knowledge from 07.12.2017, but amendment application has not been filed. In fact, it is a case where the conditions of due diligence provided under Order VI Rule 17 of CPC has not been fulfilled and without any justification, amendment application has been filed at revisional stage after final judgment and order dated 08.07.2022 passed in suit. Therefore, judgments so relied upon by learned counsel for petitioner-defendant shall not come in the rescue of petitioner-defendant as it is case of negligence and not of bona fide delay."
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"23. The controversy involved in the present case is squarely covered with judgements of Hari Shanker (Supra) and Hari Narayan (Supra). Therefore, considering all facts and circumstances of the case, this Court is of the view that due diligence is a very important factor while allowing amendment application under Order VI Rule 17 of CPC and applicant has to prove that he has made all possible efforts, but even after that, he could not know about the documents or facts which are most relevant to decide the controversy. In case documents or facts are available or within the knowledge of petitioner, at any stage, if any application is filed, same cannot be allowed as it would not fulfil the para meter of due diligence as provided in Order VI Rule 17 of CPC."
18. From the perusal of Order VI Rule 17 CPC, it is apparently clear that there is no discrimination for filing amendment application either for plaint or written statement and proviso of due diligence is very much applicable in both the cases amendment is filed after commencement of trial. In fact, it is beneficial legislation enabling the parties to bring the some relevant facts on record, if it was not available at the time of filing of plaint or written statement even after commencement of trial. Therefore, a condition of due diligence has also been made, which has to be complied with, otherwise this provision may be misused to delay the proceeding. Therefore, it would be equally applicable for plaint and written statement.
19. So far as judgements referred herein above are concerned, those are also of the same view. There is no doubt that about the facts mentioned in amendment application, Court should have been more liberal while considering the amendment application in written statement, but at the same time Court cannot ignore the proviso of due diligence otherwise provision would have been misused. Therefore, Courts were conscious while interpreting the provision of Order VI Rule 17 CPC and no liberty is given to either of the parties to skip away with the condition of due diligence. Courts have taken a categorical view that either it is a case of amendment in plaint or written statement, it is necessary to fulfill the requirement of due diligence as provided in Order VI Rule 17 CPC.
20. So far as present case is concerned, there is no dispute on the point that except the engagement of new counsel, nothing has been stated in amendment application even after sincere efforts, they could not search out the fact, which is to be amended in written statement. Therefore, the condition of due diligence could not be satisfied. Law is very much settled that change of counsel cannot be a ground for filing amendment. Therefore, no interference is required in the impugned order dated 11.04.2023.
21. Accordingly, petition lacks merit and is dismissed. No order as to costs.
Order Date :- 8.5.2023 Arvind