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2013 DIGILAW 1641 (RAJ)

Shiv Shankar Mahawar v. Lalit Kumar

2013-09-17

R.S.CHAUHAN

body2013
JUDGMENT 1. - The petitioner/defendant is aggrieved by the order dated 30.5.2013 passed by the Judge, Rent Tribunal, Alwar whereby the learned Judge has allowed the application under Order 6, Rule 17 CPC filed by the respondent No.1/plaintiff for making necessary amendment in the plaint. 2. The brief facts of the case are that the shop in dispute was rented to the petitioner-defendant by the plaintiff-respondent. In 2003, the plaintiff-respondent filed a petition for eviction under Section 9 of the Rajasthan Rent Control & Eviction Act, 2001, against the defendant-petitioner on the ground of bonafide necessity as well as material alteration in the rented premises. The petitioner submitted his written statement and claimed that the plaintiff is already having vacant shops. Thus, the petitioner denied the ground of bonafide necessity. The plea of material alteration was also denied. On the basis of pleadings of the parties, the learned trial court framed issues on 19.5.2004. Thereafter, on 12.7.2007, the plaintiff was cross-examined. After completion of evidence, the matter was posted for final arguments in 2008. At this stage of the proceedings, on 28.8.2008, the plaintiff-respondent filed an application under Order 6, Rule 17 CPC before the learned trial court for making necessary amendment in the plaint. The petitioner submitted reply to the said application on 1.9.2008. By order dated 30.5.2013, the learned trial court has allowed the application. Hence, this petition before this court. 3. Relying on the case of J. Samuel & Ors. v. Gattu Mahesh & Ors., (2012) 2 SCC 300 the learned counsel for the petitioner has contended that after the amendment of Order 6, Rule 17 CPC and with the induction of proviso thereto, a third test has been laid down by the legislature, namely the test of "due diligence". According to the learned counsel, in a testimony which was recorded on 12.7.2007, a specific question was put to the defendant. In answer to the said question, the defendant had claimed that he knows the fact that the petitioner has G-177, M.I.A. in his possession, and that is where the petitioner has constructed his factory. He also knows the fact that the petitioner has a house in N.E.B. where he can easily run his office. Despite knowing this fact on 12.7.2007 or earlier still he did not file any application for amendment in the plaint till 28.8.2008. He also knows the fact that the petitioner has a house in N.E.B. where he can easily run his office. Despite knowing this fact on 12.7.2007 or earlier still he did not file any application for amendment in the plaint till 28.8.2008. Moreover, in his application he does not spell out a single step which would show his due diligence in seeking the amendment. Thus, while permitting the amendment, the learned Judge was required to see whether the third test laid down by the legislature was passed or not. However, the learned Judge has failed to do so. Therefore, the impugned order deserves to be interfered with. 4. On the other hand, the learned counsel for the respondent has merely contended that the plea now being raised before this court did not form part of the reply filed by the petitioner. Moreover, even if the amendment were allowed it would not prejudice or cause injustice to the petitioner as he would have ample opportunity to meet out the case of the plaintiff-respondent. 5. Heard the learned counsel for the parties and perused the impugned order. 6. In the case of J. Samuel & Ors. (supra), the Hon'ble Supreme Court has observed as under:- "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. 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 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." 8. Thus, the term "due diligence" itself establishes a test to be applied by the court before permitting an amendment to be made.9. A bare perusal of the facts narrated above clearly reveals that in his testimony, the plaintiff-respondent was unequivocally asked a question to which he had replied that he is well aware of the fact that G-177, M.I.A. was in the possession of the petitioner. Despite having this knowledge, in his application filed under Order 6, Rule 17 CPC, he does not explain the inordinate delay of one year. In fact, even after the reply was filed by the petitioner and an objection was taken with regard to lack of due diligence even then the plaintiff-respondent did not file a rejoinder explaining the steps taken by him for filing the said application. Hence, he failed to explain the inordinate delay in moving the application for amending the plaint.10. A bare perusal of the impugned order clearly reveals that in Para-1 of the order, the learned Judge has merely reproduced the contents of the application filed by the plaintiff-respondent. Moreover, while discussing the merits of the application, the learned Judge has not noticed the objection raised by the defendant-petitioner with regard to lack of due diligence. Most importantly, the learned Judge has failed to apply the said test before permitting the amendment of the plaint.11. For the reasons stated above, the order dated 30.5.2013 is quashed and set aside. The petition is, hereby, allowed. The stay application is also disposed of.12. Most importantly, the learned Judge has failed to apply the said test before permitting the amendment of the plaint.11. For the reasons stated above, the order dated 30.5.2013 is quashed and set aside. The petition is, hereby, allowed. The stay application is also disposed of.12. The Registry is directed to detach this file from SB Civil Writ Petitions No.14868/13 and 15051/13.Petition Allowed. *******