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2014 DIGILAW 1968 (ALL)

Vidya Wati v. State of U. P.

2014-07-07

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri Ram Kumar for the petitioner and Sri J.B. Singh for the respondent-3. 2. The writ petition has been filed against the order dated 28.6.2014 by which amendment application filed by the petitioner to amend the written statement, has been dismissed. 3. Shashi Singh (respondent-3) filed an election petition against the declaration of election result of the petitioner as Pradhan of Gram Panchayat Mohaddinpur, tehsil Mohammadi, district Khiri. The petitioner, who is elected Pradhan, filed her written statement on 10.8.2011. Thereafter the issues in the election petition were framed on 19.1.2012. Earlier the petitioner filed an application for amendment of written statement, which was allowed. Thereafter she filed a subsequent application dated 22.8.2012 for amendment of the written statement, in which she proposed to incorporate paragraph 27 of the written statement to the effect that the respondent -3 had not deposited the amount as required under Rule 3 of UP Panchayat Raj (Settlement of Election Dispute) Rules 1994, in personal ledger account of Gram Panchayat Mohaddinpur and the election petition was liable to be dismissed. The application of the petitioner has been rejected by Election Tribunal on the ground that the amendment application has been filed to delay of hearing the election petition. Hence this writ petition has been filed. 4. The counsel for the petitioner submits that the petitioner has raised the ground relating to the maintainability of the election petition as the compliance of Rule 3 of UP Panchyat Raj (Settlement of Election Disputes) Rules 1994 is mandatory and in the absence of its compliance the election petition was liable to be dismissed. The amendment application ought to have been allowed and such an amendment can be permitted to be made at any stage of the suit. The amendment application has been rejected only on irrelevant consideration that it has been filed to delay the proceeding. The observation made by the Election Tribunal in this respect is based upon conjuncture and surmise also. 5. I have considered the argument of the counsel for the petitioner. A perusal of the election petition shows that in paragraph 9 of the election petition, respondent-3 has disclosed that the required amount has been deposited by her on 4.1.2010, 22.11.2010 and 21.11.2010. 5. I have considered the argument of the counsel for the petitioner. A perusal of the election petition shows that in paragraph 9 of the election petition, respondent-3 has disclosed that the required amount has been deposited by her on 4.1.2010, 22.11.2010 and 21.11.2010. The petitioner, in her written statement, has replied this paragraph and stated that the amount deposited by the plaintiff was less than the required amount, thereafter this proposed amendment application has been filed. Under Order VI, Rule 17 C.P.C. a proviso has been added in the year 2002 which causes a rider on the power of the court in allowing the amendment application, to the effect that after commencement of the trial the amendment application cannot be allowed unless the court comes to the conclusion in spite of due diligence, the party could not have raised the matter before the commencement of the trial. In this case the allegation in respect of the deposit has been made by the election petitioner in the election petition. While preparing the written statement a reply of this paragraph has been given, therefore it cannot be said that the proposed amendments were not in the notice of the petitioner earlier and could not be noticed in exercise of due diligence. 6. Order VI Rule 17 C.P.C., as amended in 2002, is 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." 7. Supreme Court in Salem Advocate Bar Assn. (II) v. Union of India, (2005) 6 SCC 344 , held that Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. Supreme Court in Salem Advocate Bar Assn. (II) v. Union of India, (2005) 6 SCC 344 , held that Order 6 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. 8. 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. 9. 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. 9. 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. 10. In view of aforesaid discussion, I do not find any merit in the case. The writ petition is dismissed.