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2015 DIGILAW 936 (MP)

Sunita Agrawal v. Jagdish Agrawal

2015-09-04

SUJOY PAUL

body2015
ORDER 1. This petition challenges the order dated 22.7.2014 whereby the application preferred by the petitioner/defendant under Order 6 rule 17 is disallowed by the Court below. Rejection is solely based on the ground that belated amendment application which was filed after commencement of trial does not reflect any due diligence. 2. Shri Bhardwaj submits that the necessary ingredients relating to averments which were proposed by way of amendment application are already there in the written-statement. In order to elaborate and strengthen the same, amendment was necessitated. It should have been allowed by taking lenient view. He relied on (2007)6 SCC 167 (Andhra Bank v. ABN Amro Bank N.V. and others). 3. Shri R.K. Soni opposed the same and supported the order impugned. 4. This is trite law that amendment application filed before commencement of trial and after commencement of trial are to be dealt with by applying different parameters. 5. The apex Court in (2012)11 SCC 341 (Abdul Rehman and another v. Ruldu and others), after considering earlier judgments on this aspect 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. In (Vidya Bai and others v. Padmalatha and another), reported in (2009)2 SCC 409 , the apex Court held that amendment after the commencement of trial can be allowed when jurisdictional fact of 'due diligence' is shown in the amendment application. The same view is taken by this Court in 2015(1) MPLJ 92 (Dashrath and another v. State of M.P.) There is no jurisdictional error in the impugned order. It does not suffer from any palpable perversity or manifest procedural impropriety. There is nothing in the impugned order which warrants interference under Article 227 of the Constitution. Judgment of Andhra Bank (supra), is of no assistance to the petitioner because in the said case the apex Court did not deal with the impact of proviso to Order 6 rule 17 CPC. 7. Petition sans substance and is hereby dismissed. No costs. ............