Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 766 (MP)

Ram Milan Gupta v. Kanhaiya Lal Soneja

2014-07-07

SUJOY PAUL

body2014
JUDGMENT Sujoy Paul, J. 1. This petition filed under Article 227 of the Constitution challenges the order dated 5.9.2013, whereby the application of the plaintiff preferred under Order 6 Rule 17 CPC is allowed by the court below. 2. Shri P.C. Chandil, learned counsel for the petitioner/defendant assailed this order on the singular ground. He submits that the suit was filed in the year 2012. On 12.2.2013 issues were framed. Plaintiff deposed his statement on 15.5.2013 and, therefore, trial began before filing of amendment application (Annexure P/4), which was filed on 25.6.2013. Shri Chandil submits that by filing reply dated 4.7.2013 (Annexure P/5), the petitioner raised a specific objection that after amendment in the proviso to Order 6 Rule 17 CPC, the amendment cannot be mechanically allowed. One must satisfy that he has shown due diligence in belatedly filing the application. On this ground interference is prayed for. 3. Shri Navnidhi Padhariya, learned counsel on the other side submits that the amendment is based on subsequent event. He relied on para 2 of the amendment application (page 21), wherein the plaintiff has pleaded that since November, 2012 his son is running his business at a rented shop at Hujrat Road. In addition, he submits that pleadings were intended to be added to strengthen the existing pleadings. These are in the nature of explanation and it will not cause any prejudice to the other side. The same is necessary for lawful adjudication of the matter. In support of his submissions, he relied on Swami Vivekanand Shishu Mandir and Another vs. Smt. Fehmida Begam 2002 (1) MPHT 143 . He also relied on Andhra Bank vs. ABN Amro Bank N.V. and Others, (2007) 6 SCC 167 and Estralla Rubber vs. Dass Estate Private Limited, (2001) 8 SCC 97 . 4. I have heard learned counsel for the parties and perused the record. 5. Two judgments, namely, Swami Vivekanand Shishu Mandir (supra) and Estralla Rubber (supra) are of no assistance to the petitioner. These judgments deal with pre-amended Order 6 Rule 17 CPC. The proviso was inserted in Order 6 Rule 17 in 2002. The effect of amendment is considered by Supreme Court after considering the relevant judgments on the point in the case of Vidyabai and Others vs. Padmalatha and another, (2009) 2 SCC 409 . These judgments deal with pre-amended Order 6 Rule 17 CPC. The proviso was inserted in Order 6 Rule 17 in 2002. The effect of amendment is considered by Supreme Court after considering the relevant judgments on the point in the case of Vidyabai and Others vs. Padmalatha and another, (2009) 2 SCC 409 . In Vidyabai (supra) the Apex Court opined that unless jurisdictional fact of 'due diligence' is established, the trial court has no jurisdiction to entertain and allow the amendment application. The matter was again considered by Supreme Court in Abdul Rehman vs. Mohd. Ruldu, 2012 AIR SCW 5419 wherein the Apex Court opined as under:- The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. (Emphasis supplied) 6. A bare perusal of the principle laid down will make it clear that amendment application filed by the party before commencement of the trial and application filed after commencement of the trial are required to be dealt with by applying different criteria. After commencement of the trial while filing amendment application one has to establish 'due diligence'. In absence of establishing due diligence, the trial court has no jurisdiction to entertain the amendment application. The same view is taken by recent judgments of this Court, reported in Sonu Dubey vs. Virendra Kumar Rai and Others, 2014 (2) MPLJ 433 and Pratap vs. Ganeshram and Others, 2014 (2) MPLJ 464 . 7. If the impugned application and impugned order are tested on the anvil of the aforesaid principle laid down, it will be clear that the court below has not even considered the specific objection of the petitioner raised in his reply, Annexure P/5. The effect of proviso is not considered by the court below. The court below has not given any finding that the requirement of showing "due diligence" is established. The finding of court below is perverse inasmuch as the court below has treated an event of November 2012 as a subsequent event. The said event is prior to commencement of the trial and, therefore, plaintiff was required to show 'due diligence'. 8. The court below has not given any finding that the requirement of showing "due diligence" is established. The finding of court below is perverse inasmuch as the court below has treated an event of November 2012 as a subsequent event. The said event is prior to commencement of the trial and, therefore, plaintiff was required to show 'due diligence'. 8. On the basis of aforesaid analysis, it is clear that the court below has passed the order without considering the statutory mandate of proviso to Order 6 Rule 17 and the legal position on the subject. 9. Considering the aforesaid, the order dated 5.9.2013 is set aside. The amendment application is rejected. Petition is allowed. No costs.