Madhya Pradesh High Court
Avneet Kumar Gupta vs Vinod Kumar Goyal on 16 September, 2014
1 W.P.No. 6390/2013
(Avneet Kumar Gupta Vs. Vinod Kumar Goyal)
16/09/2014
Shri Sunil Jain, Advocate for the petitioner.
Shri D.K.Agrawal, Advocate for the respondent.
Heard.
This petition by petitioner/defendant under Article 227
of the Constitution of India is directed against the order dated
23/7/2013. Trial Court by the impugned order has dismissed
the application of the defendant under Order VI Rule 17 of
CPC.
Facts necessary for disposal of this petition are to the
effect that the suit has been filed by the respondent/plaintiff for declaration and arrears of rent. Parties filed their pleadings, trial Court framed issues and fixed the case for evidence of plaintiff. While the evidence of plaintiff was in progress, the defendant-tenant filed an application inter alia contending that plaintiff has other suitable accommodation and therefore, need of the plaintiff on the ground of bona fide is not available. Trial Court has dismissed the application observing that the law as regards jurisdiction of the Trial Court under Order VI Rule 17 of CPC has been well established by Hon. Supreme Court as well as various High Courts. The proviso to Order VI Rule 17 CPC incorporated in 2 W.P.No. 6390/2013 the statute by amendment cast an obligation upon the applicant seeking amendment to establish that despite due diligence, the applicant could not have raised the proposed amendment before the commencement of trial. Trial Court is required to address upon the aforesaid jurisdictional fact and thereafter can exercise jurisdiction under Order VI Rule 17 of CPC as regards merits of the proposed amendments. In the instant case, amendment application or even otherwise, there is nothing on record to suggest that proposed amendments were not in the knowledge of the defendant and therefore, despite diligence could not be made a part of the written statement. Trial Court accordingly held that since trail has commenced as issued are framed and evidence of plaintiff was in progress, under such circumstances, trial Court did not find the application under Order VI Rule 17 bona fide in nature and accordingly dismissed the same.
Having gone through the order impugned, this Court is of the opinion that there is no dispute about the fact that trial has commenced and secondly there is nothing on record to suggest that proposed amendments were not in the knowledge of the defendant at the time of filing written statement. As such in absence of any explanation in that behalf, in the opinion of this Court, trial Court was fully justified having 3 W.P.No. 6390/2013 found that for want of existence of jurisdictional facts proposed amendment could not be allowed.
Learned counsel for the plaintiff to support impugned order has relied upon the judgment of Hon. Supreme Court in the matter of J.Samuel and others, Vs. Gattu Mahesh and others, (2012) 2 SCC 300. Relevant para 19 and 20 are reproduced hereinbelow:-
"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 specially 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."
In view of the aforesaid legal position, this Court finds no error of law much less jurisdictional error in the impugned 4 W.P.No. 6390/2013 order warranting interference of this Court. Petition being devoid of substance, is hereby dismissed.
(Rohit Arya) Judge jps/-