Tripura High Court
Sri Anil Chandra Poddar vs Sri Uttam Poddar on 23 February, 2017
THE HIGH COURT OF TRIPURA
AGARTALA
CIVIL REVISION PETITION No.76/2016
Sri Anil Chandra Poddar,
S/o Late Girish Chandra Poddar,
Resident of Chataria, P.S. R K Pur,
Udaipur, District - Gomati.
........ Petitioner.
-: Versus :-
1. Sri Uttam Poddar,
2. Sri Arun Poddar,
3. Sri Amar Poddar,
4. Sri Samar Poddar,
5. Sri Tarun Poddar,
6. Sri Litan Poddar,
All are sons of Dhirendra Poddar,
resident of Chataria, P.S - R. K. Pur,
Udaipur, District - Gomati.
..... Defendant Respondents.
BEFORE THE HON'BLE THE CHIEF JUSTICE Counsel for the petitioner : Mr. A K Bhowmik, Sr. Advocate, Ms. A Banik, Advocate.
Counsel for the respondents : Mr. D Bhattacharjee, Advocate, Mr. A K Pal, Advocate.
Date of hearing : 16-02-2017.
Date of judgment & order : 23-02-2017
JUDGMENT & ORDER
This civil revision is directed against the order dated 29-02-2016 passed by the learned District Judge, Gomati District in T.A. No. 9 of 2008 rejecting the application of the petitioner for amending his plaint and for adducing additional evidence at the appellate stage.
2. As the factual matrix need not be discussed for disposal of this revision, I will straightaway refer to the relevant part of the impugned order, which is in the following terms:
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"Law is already settled that even at the appellate stage also, petition for amendment may be allowed for due adjudication of the dispute between the parties and if by allowing this petition real picture comes before the Court.
The Court is not going to decide at this stage whether the proposed amendments are based on correct assertions or false assertions. Even if all the assertions made in the proposed amendment are taken to be gospel truth, still for reasons stated above, the real picture will not come before this Court and will not help the Court in properly adjudicating the matter, rather it will create confusion. As it appears, the appellant is not furnishing the correct information to the Court by the proposed amendment in true form along with submission of all the relevant documents.
All the facts proposed to be incorporated in the plaint and all the deeds proposed to be adduced as additional evidence were already in the custody of the appellant at the time of filing of the suit, but same were not placed though he had ample scope to place the same before the learned trial court at that time. After amendment of provision of Order 6, Rule 17 C.P.C. in the year 2002, no application for amendment shall be allowed after the trial has commenced unless it is shown that despite due diligence, the party could not have raised the matter before the commencement of the trial.
Here, if the matter is viewed leniently in favour of the appellant that despite due diligence he could not place those facts and documents before the commencement of the trial and even if thereby the proposed amendment is allowed and the documents proposed to be taken into evidence as additional evidence, still this Court will not be able to find out the clear picture of the situation and to give proper justice to both the parties.
For that reason, the petition filed under Order 6, rule 17 C.P.C. and the petition filed under Order 41, Rule 27 C.P.C. for adducing additional evidence as filed on 31-07-2008 are hereby rejected.
Fix 14-07-2016 for argument."CRP No.76/2016 Page 2 of 8
3. Order VI, Rule 17 of the Code of Civil Procedure (CPC) is in the following terms :
"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."
The principles which govern the question of granting or disallowing amendments under Order VI Rule 17 CPC are by now well settled. Order VI Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. Under the unamended provisions, all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. However, with the introduction of the proviso to Order VI, Rule 17, CPC, a distinction has now been made between pre-trial amendment and amendment after commencement of trial. A pre-trial amendment could be allowed liberally as the opposite party would not be prejudiced because he will have an opportunity of meeting the amendment sought to be made. However, in the case of amendment after commencement of trial, the question of prejudice to the opposite party may arise and, in such an event, it is incumbent on the part of the court to satisfy the conditions prescribed in the proviso to Order VI, Rule 17 CPC, namely, the Court must come to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In the instant case, we are dealing with an CRP No.76/2016 Page 3 of 8 application for amendment of the plaint at the appellate stage. Consequently, it is all the more necessary for the appellate court to satisfy itself that in spite of due diligence, the appellant could not have raised the matter after the commencement of the trial. The term "due diligence"
appearing in the proviso to Order VI, Rule 17, CPC was explained by the Apex Court in J. Samuel v. Gattu Mahesh, (2012) 2 SCC 300 in the following terms:
"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."
(emphasis supplied)
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 CRP No.76/2016 Page 4 of 8 "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.
21. 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. The term "typographical error" is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore, the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code.
22. The claim of typographical error/mistake is baseless and cannot be accepted. In fact, had the person who prepared the plaint, signed and verified the plaint showed some attention, this omission could have been noticed and rectified there itself. In such circumstances, it cannot be construed that due diligence was adhered to and in any event, omission of mandatory requirement running into 3 to 4 sentences cannot be a typographical error as claimed by the plaintiffs. All these aspects have been rightly considered and concluded by the trial court and the High Court has committed an error in accepting the explanation that it was a typographical error to mention and it was an accidental slip." CRP No.76/2016 Page 5 of 8
4. In the instant case, as already pointed out by the appellate court, the facts sought to be incorporated in the plaint were already there at the time of instituting the suit, and the reason for not incorporating those facts in the plaint was due to mistake of the petitioner and his counsel. Now, if the aforesaid allegations of the petitioner are assumed to be true, when did they come to know of such mistake? Was it after the commencement of the trial or was it only after the filing of the appeal? No details are forthcoming from the petitioner in this behalf. Moreover, how could the petitioner or his counsel not detect such vital facts even at the stage of the trial if either of them were diligently prosecuting the suit? In my opinion, this fact itself demonstrates that there was no exercise of due diligence by either of them in omitting to incorporate those facts in the plaint at the time of filing the suit. In other words, this is not a case where the appellate court could have come to the conclusion that in spite of due diligence, the petitioner could not have raised those facts before or after the commencement of the trial. To construe otherwise will render the proviso to Order 6, Rule 17 CPC nugatory. The age old practice of liberally allowing amendment of the plaint even after the commencement of the trial has now been discarded by the introduction of the proviso to Order 6, Rule 17 CPC so that lengthy trial is avoided for good. The learned District Judge has rightly rejected the application for amendment of the plaint at the appellate stage.
5. Coming now to the rejection of the application for production of additional evidence, in my opinion, the same principles for rejecting the application for amending the plaint will apply. Order XLI, Rule 27, CPC reads thus:
"27. Production of additional evidence in Appellate Court.-- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if--CRP No.76/2016 Page 6 of 8
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined.
(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
(Underlined for emphasis)
6. In the instant case, we are concerned with Order XLI, Rule 27(1)(aa) CPC. Thus, on perusal of this provision, it plainly shows that the party can seek liberty to produce additional evidence at the appellate stage, but the same can be permitted only if the evidence sought to be produced could not be produced at the stage of trial in spite of exercise of due diligence and that the evidence could not be produced as it was not within his knowledge and hence was fit to be produced by the appellant before the appellate forum. It is thus clear that there are conditions precedent before allowing a party to adduce additional evidence at the stage of appeal, which specifically incorporates conditions to the effect that the party in spite of due diligence could not produce the evidence and the same cannot be allowed to be done at his leisure or sweet will. On the pleading of the petitioner itself, it is evident that this is not a case where despite exercise of due diligence, it was CRP No.76/2016 Page 7 of 8 not within his knowledge that such additional evidence sought to be produced by him did exist before the conclusion of the trial; he clearly admitted that the documents were in his custody at the time of instituting the suit. The documents were also in his custody which could have been produced by him by exercise of due diligence even after the commencement of the trial. In other words, there is no material from which the appellate court could come to the conclusion that the petitioner had exercised due diligence, but could not produce before the trial court despite exercise of due diligence by him. In my judgment, this is a classic instance of desperate effort made by the petitioner either to delay disposal of the appeal or to plug serious loopholes in his case. The appellate court did not commit any infirmity in rejecting such an application.
7. The offshoot of the foregoing discussion is that there is no merit in this revision petition, which is hereby dismissed. Interim order, if any, stands vacated. No order as to costs.
CHIEF JUSTICE Sukhendu CRP No.76/2016 Page 8 of 8