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2016 DIGILAW 1499 (HP)

Saji Devi v. Parvati Devi

2016-07-27

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. By way of present petition filed under Article 227 of the Constitution of India, the petitioner has prayed for setting aside order passed by the learned trial court dated 12.5.2015 vide which, an application filed by the present petitioner, who is the plaintiff before the learned trial court under Order 6 Rule 17 of the Code of Civil Procedure (in short ‘CPC’) for amendment of the plaint has been dismissed. As per the petitioner, she has filed a suit for declaration with consequential relief of injunction against the respondent and during the pendency of said suit, she filed an application under Order 6 Rule 17 CPC, vide which amendment was sought for a very limited purpose in view of the fact that as no prayer had been made in the suit with regard to the General Power of Attorney given by the petitioner in favour of respondent No.2, though there were averments in this regard in the plaint. It is further the case of the petitioner that this fact came to the knowledge of her counsel during the course of preparing the arguments. In these circumstances, the application was filed, however, learned trial court has dismissed the same vide impugned order dated 12.5.2105. As per petitioner, the impugned order is prima- facie bad and not sustainable in law because the learned trial court has failed to appreciate that the petitioner had made out a case for permitting her to amend the plaint as per the provisions of Order 6 Rule 17 CPC. It was further contended that the petitioner had specifically pleaded in her application that she was an illiterate and simpleton rustic lady and was influenced by respondent No.2, her brother, to execute a General Power of Attorney in his favour for the purpose of improvement of soil of the land and its fertility which had been misused and which was later on cancelled by the petitioner. According to her though all these facts were mentioned in the body of plaint but due to inadvertence and oversight, the same could not be mentioned in para 15 of the prayer and it is for this reason that the amendment was sought which fact according to the petitioner has not been appreciated by the learned Trial Court while dismissing her application. Accordingly, it was submitted on behalf of the petitioner that as the order passed by the learned Trial Court was bad in law, the same be set aside and the amendment as prayed for by the petitioner be permitted. 2. I have heard learned counsel for the parties. 3. In my considered view, there is no infirmity with the order passed by the learned trial Court, vide which it has disallowed the application filed by the present petitioner praying for amendment of the plaint. A perusal of application filed by the petitioner before the learned trial Court under Order 6 Rule 17 CPC demonstrates that in the said application it was nowhere mentioned by the plaintiff as to why amendment which was sought by way of said application was not earlier incorporated. It is not the case of the petitioner that during the pendency of civil suit, some new facts came into her notice which could not have been earlier incorporated in the plaint despite due diligence. The only reason which has been given in the said application due to which the proposed amendment could not earlier incorporated in the plaint was that the applicant was an illiterate and simpleton rustic lady. The suit in issue was filed in the year 2012. The application under order 6 Rule 17 CPC was prepared on 16.2.2015. There is no explanation given in the said application that despite due diligence the plaintiff could not have raised the matter earlier. Order 6 Rule 17 of the CPC provides as under:- “Amendment of pleadings.- The Court may at any stage of the proceedings allow either partly 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.” 4. A perusal of the said provision clearly demonstrates that no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that inspite of due diligence the party could not have raised the matter before the commencement of trial. A perusal of the said provision clearly demonstrates that no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that inspite of due diligence the party could not have raised the matter before the commencement of trial. No material has been placed on record by the petitioner either by way of averments made in the application or alongwith application from where it can be inferred that the proposed amendment was such, which inspite of due diligence could not have been raised by her before the commencement of the trial. A perusal of the order passed by the learned Trial Court also demonstrates that the learned Trial Court below has in unambiguous terms held that the applicant therein had failed to show that despite due diligence amendment could not be sought earlier. In fact, the learned trial Court has held that in the application filed under Order 6 Rule 17 CPC there was not a single whisper in this regard. It is a matter of record, that the application under Order 6 Rule 17 CPC was filed at the stage of arguments in the suit. 5. The Hon’ble Supreme Court in Chander Kanta Bansal Vs. Rajinder Singh Anand (2008) 5 SCC 117 has held that whether a party has acted with due diligence or not, would depend upon the facts and circumstances of each case. It has further held that this would, to some extent, limit the scope of amendment to pleadings, but would still vest enough powers in courts to deal with the unforeseen situations whenever they arise. The Hon’ble Supreme Court further held that the entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the other’s case. It also helps in checking the delays in filing the applications. It has further held that once the trial commences on the known pleas, it will be very difficult for any side to reconcile. The Hon’ble Supreme Court further held that inspite of the same, an exception is made in the newly inserted proviso. Where it is shown that in spite of due diligence, a party could not raise a plea, it is for the Court to consider the same. The Hon’ble Supreme Court further held that inspite of the same, an exception is made in the newly inserted proviso. Where it is shown that in spite of due diligence, a party could not raise a plea, it is for the Court to consider the same. Accordingly, the Hon’ble Supreme Court has held that it is not a complete bar nor shuts out entertaining of any later application. It also held that the reason for adding proviso is to curtail delay and expedite hearing of cases. Paragraphs No. 15 and 16 of the said judgment are quoted hereinbelow: “15. As discussed above, though first part of Rule 17 makes it clear that amendment of pleadings is permitted at any stage of the proceeding, the proviso imposes certain restrictions. It makes it clear that after the commencement of trial, no application for amendment shall be allowed. However, if it is established that in spite of "due diligence" the party could not have raised the matter before the commencement of trial depending on the circumstances, the court is free to order such application. 16. The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition 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 (Eighth Edition), "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 Edition 13A) "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.” 6. Therefore, it is evident from the law which has been discussed above that as per the Hon’ble Supreme Court that “due diligence" means diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. Therefore, it is evident from the law which has been discussed above that as per the Hon’ble Supreme Court that “due diligence" means diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. Accordingly, in my considered view, there is no infirmity with the order which has been passed by the learned Trial Court while dismissing the application filed by the present petitioner vide which she sought amendment of the plaint at the stage of arguments of the case without pleading and proving that despite due diligence, she could not earlier incorporate those averments which she proposed to incorporate in the plaint by way of its amendment. The petition is therefore dismissed. No order as to costs.