Madhya Pradesh High Court
Smt. Kamla Pandey vs Sureshchandra Shrivastava on 7 December, 2017
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. M.A. No.810/2012
Parties Name Vikas Pandey and Ors.
Vs.
Sureshchandra Shrivastava
Date of Judgment 07/12/17
Bench Constituted Single
Judgment delivered by Hon'ble Shri Justice Sujoy Paul
Whether approved for reporting Yes
Name of counsels for parties Appellant: Shri Ashok Tiwari, Advocate
Respondent: Shri S.D. Shukla, Advocate
Law laid down The term "due diligence" has a definite meaning and connotation.
The said words are not magic words which will serve the purpose in all the circumstances. The same is not like a carpet under which anything can be swept. A party seeking amendment after commencement of trial must establish "due diligence".
The diligence means care, caution, attention and care required from a person in a given situation. The litigant while engaging a Counsel is required to take much care and caution so that he engages a competent Lawyer. At appellate stage, amendment cannot be allowed on the plea that while filing written submission, correct advice by competent Lawyer was not obtained.
Significant paragraph numbers 10, 11 (Order) 7.12.2017 This appeal filed under Order 43 Rule 1 (u) of the Code of Civil Procedure, 1908 (for the short, ''the CPC) is directed against the judgment dated 16.1.2012 to the extent the court below disallowed the application of present appellant preferred at appellate stage under Order 6 Rule 17 of the CPC seeking amendment in the written statement filed before the trial court.
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2. Shri Ashok Tiwari, learned counsel for the appellant assailed the impugned judgment by submitting that the respondent/plaintiff filed a suit for mandatory and permanent injunction. The written statement was filed by the present appellant. The suit was ultimately decreed by judgment and decree dated
17.11.2008. Aggrieved, the appellant filed Civil Appeal No.63-A/2009 before the lower appellate court. During the pendency of the said appeal, the present appellant filed two applications. The first application was regarding scientific investigation of the suit land/property whereas the second application was preferred under Order 6 Rule 17 of the CPC. Shri Tiwari fairly submits that since the first application was allowed and the court below has directed for appointment of an expert/commissioner, he is not aggrieved by the said part of the judgment. The appellant is aggrieved whereby his application for amendment was disallowed.
3. Learned counsel for the appellant placed reliance on the averments of the amendment application dated 29.9.2011 and contended that when the lower appellant court has remitted the matter back to the trial court, in fitness of things, the amendment application should have been allowed so as to permit the appellant to contest the matter on pure legal issues raised in the amendment application.
4. Per contra, Shri S.D. Shukla, learned counsel for the respondent/plaintiff supported the impugned order. He placed reliance on the reply filed to the said amendment application wherein it is specifically contended that before the trial court, the appellant was represented by learned counsel and therefore, it cannot be said that proper legal advice was not received by him. Reliance is also placed on the additional statement wherein the objection is raised regarding belated filing of amendment application without showing "due diligence".
5. No other point is pressed by counsel for the parties.
6. I have heard counsel for the parties and perused the record.
7. The spinal issue which needs determination is whether the court below has committed any error of law in disallowing the application for amendment. Admittedly, the amendment application was filed after commencement of trial. It is now a matter of common knowledge in legal circles that a proviso has been inserted in Order 6 Rule 17 of the CPC w.e.f. June, 2002. As per the proviso so
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inserted, if the amendment application is filed after commencement of trial, the party who has filed such application is required to show due diligence in belatedly filing such application.
8. In the case of (2009) 2 SCC 409, [Vidya Bai and others vs Padmalatha and another] , it was held that after insertion of proviso in Order 6 Rule 17 of the CPC, the existence of "due diligence" is a jurisdictional fact and unless this fact is established, the court has no jurisdiction to entertain the amendment application. In 2012 (11) SCC 341 (Abdul Rehman vs Mohd. Ruldu),, the Apex Court held that an amendment application filed before the commencement of trial and an application filed thereafter needs to be decided by applying different parameters. The paragraph 10 of this judgment reads as under:
"10. Before considering the factual details and the materials placed by the appellants praying for amendment of their plaint, it is useful to refer Order VI Rule 17 which is 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.
It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them. The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
(Emphasis supplied)
9. A simple reading of this paragraph makes it clear that such amendment application filed after commencement of trial must show established "due diligence" wherein pre trial amendment application can be dealt with leniently. Admittedly, in the present case, the amendment application has been filed after commencement of trial.
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10. The reason shown in paragraph 2 of the amendment application is relating to requirement of showing "due diligence". The reason is that at the relevant time, the appellant/defendant has not received a proper legal advise from the counsel. Thereafter, during preparation of appeal at appellate stage, proper advise was obtained from the competent counsel and therefore, this can be treated to be a sufficient reason which falls within the ambit of "due diligence". I do not see any merit in the said contention. The words "due diligence" have a definite connotation.
11. The words "due diligence" are not magic words which can serve the purpose in all fact situations. The words are not like a carpet under which anything can be swept. The meaning of the word "due diligence" is described in Black's Law Dictionary as under:
"Due Diligence. Such a measure of prudence, activity or assiduity, as in properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case."
12. The Apex Court in the case reported in 2012 (2) SCC 300 (J. Samuel and others Vs. Gattu Mahesh and others) opined 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 and 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. The requirement of showing "due diligence" 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.
13. In the given facts, there is a clear lack of "due diligence" and the alleged mistake in engaging the Counsel or obtaining advice certainly does not come
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within the purview of "due diligence". At the time of engaging the Lawyer, the party is expected to exercise "due diligence" and engage a competent Lawyer.
14. The intention of Legislature in inserting proviso to Order 6 Rule 17 of Code of Civil Procedure is to ensure that amendment applications are not entertained after commencement of the trial as a matter of course. Such applications can be entertained when "due diligence" is established for belatedly filing the amendment application. If, as a matter of routine, such plea in filing belated applications for amendment are accepted, that party did not receive correct advice at the initial stage, there may be flood of such amendment applications pregnant with such bald plea that "correct legal advice was not given" or "the Advocate initially engaged was not competent". In that case, the very purpose of inserting proviso to Order 6 Rule 17 of CPC by law makers will be defeated. In the peculiar facts and circumstances of this case, I am unable to hold that the reasons mentioned for belatedly filing the amendment application fulfills the requirement of showing "due diligence".
15. In view of the aforesaid analysis, no fault can be found in the impugned judgment dated 16.01.2012. Ergo, no interference is warranted by this Court. Appeal is accordingly dismissed. No cost.
(Sujoy Paul) Judge P/ Digitally signed by PREETI TIWARI Date: 2017.12.12 13:45:11 +05'30'