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2014 DIGILAW 3325 (ALL)

Pawan Kumar Gupta v. Mohd. Shakir

2014-11-10

SUDHIR AGARWAL

body2014
JUDGMENT Sudhir Agarwal,J. 1. Heard Sri Y.K.Sinha, learned counsel for the revisionists, Sri Shiv Sagar Singh, learned counsel for the respondents. 2. The defect stands removed. As requested by learned counsel for the parties, I proceed to hear the revision for admission today itself. 3. This revision under Section 115 C.P.C. has arisen from order dated 26.11.2010 passed by Civil Judge (Senior Division), Ghaziabad rejecting application of plaintiffs-revisionists finding that he has failed to satisfy requirement of proviso to Order VI, Rule 17 C.P.C.. 4. It is contended that in agreement for sale, there was mention that property is under loan in the Bank and seller shall execute sale deed after discharging the loan amount but that was not done. However, in the plaint neither the Bank was made party nor any relief was sought against Bank with respect to original deed of property in dispute. The suit was instituted in 2004. An amendment application has been preferred on 8.11.2010 wherein learned counsel for the applicant could not show as to why amendment sought could not have been brought on record at the time of filing of the suit itself. 5. It is no doubt true that initially, amendment application used to be allowed with due indulgence granted liberally except of a few exceptions like introduction of a new cause of action, brining a time barred cause, change of nature of the suit etc. This is evident from a recent decision. Construing a matter prior to 2002, in Lakha Ram Sharma Vs. Balar Marketing Private Limited, (2008) 17 SCC 671 , the Court held that amendment of pleadings at any stage is permissible and should be allowed liberally subject to certain inbuilt restriction like where it changes the nature of proceedings or may revive a time barred relief or result in an irreparable loss or prejudice to other side. 6. Time and again, Apex court had given a very wide scope to amendment of pleadings. However, there is an intervention of Legislature with an object for preventing dilatory tactics to delay disposal of cases. In that view of the matter, first intervention came by virtue of C.P.C. Amendment Act, 1999 whereby, in Order 6, Rules 17 and 18 were omitted. Time and again, Apex court had given a very wide scope to amendment of pleadings. However, there is an intervention of Legislature with an object for preventing dilatory tactics to delay disposal of cases. In that view of the matter, first intervention came by virtue of C.P.C. Amendment Act, 1999 whereby, in Order 6, Rules 17 and 18 were omitted. However, this complete omission of Rules 17 and 18 did not found favour with litigating people and realizing their hardship, Legislature again intervened vide Amendment Act, 2002 whereby Rule 17 Order 6, C.P.C. was incorporated but with a restricted scope. A proviso was added therein. Order 6 Rule 17 came to be inserted by Amendment Act, 2002 reads 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" (emphasis added) 7. A bare perusal of above Rule 17 would show that an amendment is permissible by Court at any stage of proceedings, of course, in such manner and in such terms as the Court may find just, but, such an amendment is required to be necessary for the purpose of determining real question in controversy between the parties. It gives very wide power to Court for allowing amendment but the proviso added therein restricts such wide power of the Court, simultaneously, by observing that no application for amendment shall be allowed after Trial has commenced unless the Court comes to the conclusion that in spite of due diligence, party could not have raised the matter before commencement of Trial. 8. Now there is an embargo on an application for amendment to be allowed once the Trial has commenced. The embargo is complete. The only scope, thereafter is that the Court must come to the conclusion that despite due diligence, such matter could not have been raised by the party (ies) concerned before commencement of Trial. 8. Now there is an embargo on an application for amendment to be allowed once the Trial has commenced. The embargo is complete. The only scope, thereafter is that the Court must come to the conclusion that despite due diligence, such matter could not have been raised by the party (ies) concerned before commencement of Trial. Therefore the party seeking amendment, after commencement of Trial, is bound to first plead and then prove that amendment it has sought, could not have been pleaded by it, before commencement of Trial, despite its due diligence. After the Trial has commenced, an amendment cannot be sought and allowed as a matter of course unless conditions of due diligence is found to have existed therein, since it is prohibited by proviso to Order 6 Rule 17 C.P.C. 9. Before this Court it is not disputed by learned counsel for parties that trial has commenced and at the stage of hearing. The Apex Court in Kailash Vs. Nanhku AIR 2005 SC 2441 had held that a Trial is deemed to have commenced when the issue are settled and the case is set down for recording of evidence. This view has been followed in Baldev Singh and others Vs. Manohar Singh and another (2006) 9 SCC 498 and Ajendraprasadji N. Pande Vs. Swami Keshavprakeshdasji N., AIR 2007 SC 806 . 10. The Apex Court has held in Ajendraprasadji N. Pande (supra) that Order VI Rule 17 C.P.C. as amended by Amendment Act, 2002 does not permit an amendment once the Trial has commenced unless despite due diligence, matter could not be raised before the commencement of Trial. The Court held that provision is "mandatory" and precludes a party to seek amendment of his pleadings once the Trial has commenced unless requirement of proviso itself is satisfied. In taking this view, the Apex Court also referred to and relied on its earlier decision in Salem Advocate Bar Association Vs. Union of India AIR 2005 SC 3353 . 11. To the same extent, is the view taken by this Court in Rajkumar Gurawara Vs. M/s. S. K. Sarwagi and Co. Pvt. Ltd. AIR 2008 SC 2303 and Revajeetu Builders and Developers Vs. Narayanaswamy and sons and others 2009 (1) SCC 84. This Court has also followed the above exposition of law by referring to Revajeetu Builders (supra) in Sri Krishan Mittal Vs. M/s. S. K. Sarwagi and Co. Pvt. Ltd. AIR 2008 SC 2303 and Revajeetu Builders and Developers Vs. Narayanaswamy and sons and others 2009 (1) SCC 84. This Court has also followed the above exposition of law by referring to Revajeetu Builders (supra) in Sri Krishan Mittal Vs. Upper District Judge C.N. 10 Bijnor and others (Writ A No. 46709 of 2012) decided on 13.9.2012. 12. In J. Samuel and others Vs. Gattu Mahesh and others: (2012) 2 SCC 300 , the Court observed that, on a proper interpretation of proviso to Rule 17, Order VI CPC, the party has to satisfy the Court that he could not discover that ground which was pleaded by proposed amendment of the plaint, despite due diligence. No doubt, Rule 17 confers power on the Court to amend pleading at any stage of the proceedings. However, the proviso restricts that power, once the trial has commenced. Unless the Court is satisfied that there is a reasonable cause for allowing amendment, normally the Court has to reject such requests. Due diligence is the idea behind such restriction, that is, a reasonable investigation is necessary before certain kinds of relief are requested. Undoubtedly, diligent efforts are a requirement for a party seeking to use adjudicatory mechanism to attain an undisputed relief. An advocate representing someone has to engage himself in due diligence to determine that the representations made by him are factually correct and sufficient. The term due diligence is specifically used in the Court so as to provide a test for determining whether to exercise a distinction in a situation of requested amendment after the commencement of trial. A party requesting a relief stemming out of a claim is required to exercise due diligence. It is a requirement which cannot be dispensed with. The term 'due diligence' determines the scope of parties' constructive knowledge, and is critical to the outcome of the suit. The Court also observed that decisions given before insertion of proviso to Order VI Rule 17 CPC may not help the parties to decide cases after such amendment has been inserted in CPC. The entire object of amendment to order VI Rule 17, as introduced in the year 2002, is to stifle filing of application for amendment of a pleading, subsequent to the commencement of trial court, to avoid surprises and that the parties had sufficient knowledge of other's case. The entire object of amendment to order VI Rule 17, as introduced in the year 2002, is to stifle filing of application for amendment of a pleading, subsequent to the commencement of trial court, to avoid surprises and that the parties had sufficient knowledge of other's case. It also helps checking delays in filing applications. The Court in making the aforesaid observation relied on its earlier decisions in Aniglase Yohannan Vs. Ramlatha and others: (2005) 7 SCC 534 ; Chander Kanta Bansal Vs. Rajinder Singh Anand: (2008) 5 SCC 117 ; Rajkumar Gurawara (Dead) through LRs Vs. S.K. Sarwagi and Company Private Limited and another: (2008) 14 SCC 364 ; Vidyabai and others Vs. Padmalatha and another: (2009) 2 SCC 409 ; and Man Kaur (Dead) by LRs Vs. Hartar Singh Sangha, (2010) 10 SCC 512 . 13. The view, I have taken above, has also been reiterated by this Court in Suraj Prakash Vs. Waqf Khudaband Tala Mausooma, 2012(11) ADJ 524 and Civil Misc. Writ Petition No.61790 of 2012 (Shanti Swaroop Vs. Smt. Rama Sharma) decided on 29.11.2012. 14. In the present case, the amendment has been sought not only after the trial has commenced but at the stage of conclusion of trial i.e. at the stage of hearing, without satisfying the Court as to why assertion of such facts could not be made with due diligence before commencement of trial when initial pleadings were filed before trial court. On this aspect virtually there is no averment. It cannot be said that there is a proper justification stated to do away the rider imposed by proviso to Order VI Rule 17 CPC. Therefore, I have no hesitation in holding that the court below has rightly rejected amendment sought by the petitioner. 15. Despite repeated query, learned counsel appearing for the revisionists could not point out any illegality, material irregularity or jurisdictional error justifying interference by this Court in the impugned order. 16. Dismissed.