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2015 DIGILAW 1100 (MP)

Kedarnath v. Murarilal

2015-10-15

SUJOY PAUL

body2015
ORDER 1. With the consent, matter is finally heard. 2. Parties are at loggerheads on the question of validity of order dated 24.7.2009 whereby application preferred by the petitioner/plaintiff under Order 6 rule 17 CPC is rejected by the Court below. 3. Shri Deepak Khot, learned counsel for the petitioner, fairly submits that although trial had begun when amendment application was filed, it was based on settled legal position and on the basis of facts already on record. The amendment was necessary for lawful adjudication of the matter. If amendment would have been allowed, it would not have caused any prejudice to the other side. By placing reliance on 2004(10) SCC 779 (Karnataka Board of Wakf v. Government of India and others), it is urged that it was open for the plaintiff to withdraw the inconsistent averments from his plaint. Reliance is placed on 2015(4) SCC 182 (Mount Mary Enterprises v. Jivratna Medi Treat Private Limited). to contend that amendment application must be leniently considered. If it is necessary for lawful adjudication of the matter, amendment should not be disallowed. 4. Prayer is opposed by Shri Mangal. He submits that petitioner has not shown any “due diligence” and therefore, Court below has not committed any legal or jurisdictional error. Hence, no interference is warrant. 5. No other point is pressed by the counsel for the parties. 6. I have heard the parties and perused the record. 7. Order 6 rule 17 was amended in the year 2002. Proviso to Order 6 rule 17 was considered by the Supreme Court in Vidyabai and others v. Padmalatha and another, reported in (2009)2 SCC 409 . It was held that the party seeking amendment must show due diligence. “Due diligence” was held to be a jurisdictional fact without which amendment application was held to be not maintainable. Similar view is taken by the Supreme Court in 2012 AIR SCW 5419 (Abdul Rehman v. Mohd. Ruldu). The apex Court opined that amendment application filed prior to commencement of trial and one which is filed after commencement of trial, needs to be considered by applying different parameters. 8. In the present matter the amendment application is filed after commencement of trial. In Mount Mary the apex Court has neither considered the effect of proviso of Order 6 rule 17 CPC nor the judgment on this point delivered in case of Vidyabai. 8. In the present matter the amendment application is filed after commencement of trial. In Mount Mary the apex Court has neither considered the effect of proviso of Order 6 rule 17 CPC nor the judgment on this point delivered in case of Vidyabai. Thus, the judgment in Mount Mary cannot be pressed into service. A five Judge Bench of this Court in 2003(1) JLJ 105 = 2003(1) MPLJ 513 (Jabalpur Bus Operators Association and others v. State of M.P. and others) has opined that if earlier judgment of Supreme Court is not considered in the later one, earlier judgment will be the binding precedent. 9. Considering the full Bench judgment in Jabalpur Bus Operators Association, in my view the governing principles are those which are laid down in Vidyabai. The Legislature has chosen to use the words “due diligence”. Legislature has not chosen the word “diligence” only. Before the word “diligence” the word “due” is also inserted. Even if arguments of Shri Khot based on Karnataka Board of Wakf (supra), are accepted, it will be clear that even at the time of filing of suit and before commencement of trial, petitioner/plaintiff was aware about legal position. The legal position has not undergone any change after commencement of trial. Thus, amendment application is not based on any subsequent event. The petitioner has not shown any due diligence in his amendment application. Thus, I find no illegality or jurisdictional error in the impugned order. 10. The scope of interference under Article 227 of the Constitution is limited. If order is shown to be passed by a Court having no jurisdiction, it suffers from manifest procedural impropriety or perversity, interference can be made. Even an erroneous order is not required to be corrected in these proceedings under Article 227 of the Constitution. The basic purpose of exercising the said jurisdiction is to keep the Courts below within the bounds of their authority. Interference can be made sparingly for the said purpose and not for correcting error of facts and law in a routine manner. Another view is possible, is not a ground for interference. This view is taken in Shalini Shyam Shetty and another v. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 . There is no ingredient on which interference can be made in this petition. 11. The Court below has taken a plausible view which warrants no interference. Another view is possible, is not a ground for interference. This view is taken in Shalini Shyam Shetty and another v. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 . There is no ingredient on which interference can be made in this petition. 11. The Court below has taken a plausible view which warrants no interference. Petition fails and is hereby dismissed. .................