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Himachal Pradesh High Court · body

2016 DIGILAW 2222 (HP)

Vijaya Shakti Gupta v. Rakesh Khanna

2016-10-19

AJAY MOHAN GOEL

body2016
JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this petition filed under Article 227 of the Constitution of India, the petitioner has prayed for quashing of order dated 07.07.2014 passed by the Court of learned Civil Judge (Senior Division), Kangra at Dharamshala in CMA No. 80/2014 in Civil Suit No. 451/13/2003 vide which, application filed under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure by the present petitioner/plaintiff for amendment of the suit stands dismissed. The petitioner has further prayed for direction to be issued to learned Court below to decide the application of the petitioner for possession of the premises as per the directions passed in Civil Suit No. 23 of 2003 as well as in LPA No. 9 of 2005 and order dated 27.08.2012 passed in CMPMO Nos. 470 of 2011 and 478 of 2011. 2. As per the petitioner, she filed a suit for possession of property known as (a) Whispering Winds Resorts; (b) New Whispering Hotel; and (c) Residential premises built on the land comprised in Khata No. 46/41, Khatauni No. 123, Khasra No. 391/308, measuring 0-15-36 hectares, situated in Mohal Kand, Mauja Khaniyara, Tehsil Dharamshala, District Kangra, H.P. alongwith other reliefs including a decree of Rs.10,56,437.50/- on account of rent/use and occupation charges of the suit premises. The suit was initially filed in this Court, but was subsequently transferred to the Court of learned District Judge, Kangra and thereafter to the Court of learned Civil Judge (Senior Division), Kangra at Dharamshala. 3. During the pendency of the case before the Court of learned Civil Judge (Senior Division), Kangra, an application was filed under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the suit, i.e. CMA No. 80 of 2014 on the grounds that the suit was initially filed in the year 2003 and at that relevant time, plaintiff had presented the suit for recovery of an amount of Rs.10,56,437.50/- and as more than 11 years had passed and the arrears of use and occupation charges have arisen to Rs.35,18,624/-, as such the plaint was liable to be amended to the extent that the value of the suit for the purpose of Court fee and jurisdiction was liable to be substituted alongwith other amendments, which are incorporated hereinbelow: ? (a) In the value of the suit for the purposes of Court fee and jurisdiction instead of Rs.10,56,437.50/- in line 11, Rs.35,18,624/- is liable to be substituted and in line No. 14 instead of the word Rs.14,68,104.50, Rs.39,30,291/-is liable to be substituted, and in line No. 15 instead of Rs.19,084/-, Rs.42,540/- is liable to be substituted. (b) In para No. 4 of the plaint at page 4 line No. 13, instead of the date 30.4.2003 the date 30.6.2006 is to be substituted and an amount of Rs.5,40,000/- is liable to be substituted with Rs.22,50,000/-. Similarly instead of the amount Rs.6,45,000/-, Rs.23,55,000/- is liable to be substituted. Instead of Rs.43,845/- an amount of Rs.1,35,000/- is liable to be substituted and instead of Rs. 59,625/- and amount of Rs.1,50,750/- is liable to be substituted. (c) In para No. 5 of the plaint instead of Rs.1,30,000/-, Rs.5,60,000/- is liable to be substituted and instead of 16.6.2003, the date 30.6.2006 is liable to be substituted and Rs.14,625/- is liable to be substituted with Rs.58,500/- and Rs.1,44,625/- is liable to be substituted with Rs.5,78,500/- (d) In para No. 6 of the plaint at page 5, instead of the date 30.4.2003, the date 30.6.2006 is liable to be substituted and an amount of Rs.1,70,000/- is liable to be substituted with Rs.3,60,000/-. Rs. 37,187.50 is liable to be substituted with Rs.74,374/- and The word Rs.10,56,437.50 is liable to be substituted with Rs.35,18,624/-. (e) In para No. 7 of the plaint Rs.10,56,437.50 is liable to be substituted with Rs. 35,18,624/-/. (f) In para No. 9 of the plaint at page 6, Rs.10,56,437.50 is liable to be substituted with Rs.35,18,624/- and amount of Rs.12,689.60 is liable to be substituted with Rs.38,540/-, and Rs.14,68,104.50 is liable to be substituted with Rs.39,30,291/- and an amount of Rs.19,084/- is liable to be substituted with Rs.42,540/-. (g) In para no. 12 (ii) of the plaint Rs.10,56,437.50 is liable to be substituted with Rs.35,18,624/-.? 4. The above were the proposed amendments which the petitioner prayed for by way of an application filed under Order 6 Rule 17 of the Code of Civil Procedure to be incorporated in the plaint. (g) In para no. 12 (ii) of the plaint Rs.10,56,437.50 is liable to be substituted with Rs.35,18,624/-.? 4. The above were the proposed amendments which the petitioner prayed for by way of an application filed under Order 6 Rule 17 of the Code of Civil Procedure to be incorporated in the plaint. However, the Court of learned Civil Judge (Senior Division), Kangra at Dharamshala vide order dated 07.07.2014 dismissed the application so filed by the petitioner under Order 6 Rule 17 of the Code of Civil Procedure on the ground that tentative use and occupation charges were granted by the High Court in the year 2006, but the application for amendment had been filed in the year 2014 and in case the applicant intended to recover the use and occupation charges @Rs.34,000/- per month, as were awarded by the High Court since 2003 to 2006, then why was the application not immediately filed after the year 2006, which as per the learned trial Court amounted to not exercising =due diligence' by the applicant. Learned trial Court also dismissed the application on the ground that because the proposed amendment intended to oust the jurisdiction of learned trial Court, as such said application could not be allowed. It further held that the tentative amount of use and occupation fixed by the High Court was subject to adjustment in the final order of the Court and tenancy had yet not been terminated. Accordingly, on these basis, the application so filed by the applicant was dismissed by learned trial Court. 5. Mr. K.D. Sood, learned Senior Counsel appearing for the petitioner has argued that the order passed by learned trial Court dated 07.07.2014 vide which application so filed by the petitioner/plaintiff under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint has been dismissed is perverse and learned trial Court while dismissing the said application has failed to exercise jurisdiction vested in it and has further not appreciated the law as it stands with regard to amendment of pleadings. Mr. Mr. Sood further argued that learned trial Court erred in dismissing the application filed by the petitioner under Order 6 Rule 17 of the Code of Civil Procedure on the ground that the said application could not be allowed because by way of proposed amendment, the applicant intended to oust the jurisdiction of the learned trial Court because as per Mr. Sood, the application praying for proposed amendment could not have been dismissed on this ground. According to Mr. Sood, because it was learned trial Court which was seized with the matter, therefore, the plaintiff could have moved an application praying for amendment of pleadings only before that Court and if after allowing the said application, the same amounted to ousting the jurisdiction of learned trial Court for want of pecuniary jurisdiction to entertain the case, then the course of action available in law to the learned trial Court would have been to return the plaint to the plaintiff for presenting the same before the appropriate Court having pecuniary jurisdiction to adjudicate the same. Mr. Sood further argued that learned trial Court also erred in holding that because the tentative amount of use and occupation charges fixed by this Court was subject to adjustment in the final order, therefore, the amendment could not be carried out. It was further argued by Mr. Sood that learned Court below erred in coming to the conclusion that =due diligence' was not exercised by the plaintiff and as such, the plaintiff was not entitled to amend the plaint. According to Mr. Sood, it was apparent from the averments made in the application filed under Order VI Rule 17 of the Code of Civil Procedure that =due diligence' was exercised by the plaintiff and the reasons mentioned in the application were self speaking as to why the amendment was being sought. On these grounds, it was urged by Mr. Sood that the impugned order passed by learned trial Court was not sustainable in the eyes of law and the same was liable to quashed and set aside. He further prayed that the application for amendment of the plaint filed by the petitioner/plaintiff be accordingly allowed in the interest of justice. 6. I have heard the learned counsel for the parties and also gone through the records of the case. 7. He further prayed that the application for amendment of the plaint filed by the petitioner/plaintiff be accordingly allowed in the interest of justice. 6. I have heard the learned counsel for the parties and also gone through the records of the case. 7. The application filed by the petitioner/plaintiff for amendment of the plaint primarily has been dismissed by the learned trial Court on three grounds: (a) that the proposed amendment intended to ousting the jurisdiction of learned trial Court; (b) that the applicant had not exercised =due diligence' and, therefore, the applicant was not entitled to amend the plaint; and (c) the tentative amount of use and occupation charges fixed by this Court was subject to the adjustment in the final order which was to be passed by the learned trial Court and the tenancy had not yet been terminated. 8. In my considered view, dismissal of the application for amendment of the plaint on the ground that by way of the proposed amendment, the plaintiff intended to oust the jurisdiction of learned trial Court and the same was not permissible in law is totally erroneous. There is no bar in law that the plaintiff cannot file an application for amendment of the plaint, which if allowed, may oust the pecuniary jurisdiction of the Court before which the case is otherwise pending. 9. A perusal of the provisions of Order VI Rule 17 of the Code of Civil Procedure demonstrates that it is contemplated therein that the Court may at any stage of the proceedings allow either party to alter or amend its 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 amendment shall be allowed after commencement of the trial 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. Thus, as per Rule 17 of Order VI, all such amendments shall be made as may be necessary for determining the real questions in controversy between the parties. Thus, as per Rule 17 of Order VI, all such amendments shall be made as may be necessary for determining the real questions in controversy between the parties. There is no bar contemplated in the bare provisions that if a proposed amendment which otherwise may be necessary for the purpose of determining the real questions in controversy between the parties ousts the pecuniary jurisdiction of a Court, then the said amendment shall not be allowed on this count alone. Besides, this finding has not been returned in the impugned order by the learned trial Court that the proposed amendment otherwise was not necessary for the purpose of determining the real questions of controversy between the parties. 10. It is true that when an amendment is allowed, then the same relates back to the date when the suit was filed and if the suit as framed was beyond the jurisdiction of the Court, then it would have no jurisdiction to allow the amendment for want of jurisdiction to entertain the suit itself. However, it has to be kept in mind that entertaining and trying a suit which, when presented is beyond the jurisdiction of the Court, is definitely not permissible, but the fact that the amendment relates back to the date of presentation of the plaint is notional and even such a notional conception will come into play only when the plaint is amended. Therefore, the question of ousting the jurisdiction would normally arise only when the claim is amended. Similarly, when a Court having jurisdiction is seized of a matter, the question whether the amendment has to be allowed or not could be considered by that Court only and the question of ouster of jurisdiction and incompetency to decide anything in the suit will come into play only when that effect is achieved by way of amendment. It is but obvious that there has to be some authority to decide whether the amendment is to be allowed or not and before that is done, the Court seized of the matter and having jurisdiction alone will have to deal with it, otherwise there will be a vaccum and whether the amendment is allowable or not is a matter which ultimately is to be decided by the Court. 11. Accordingly, in my considered view, the question of ouster will come only when the plaint is amended. 11. Accordingly, in my considered view, the question of ouster will come only when the plaint is amended. It is reiterated that the Court before which the case is pending alone is the Court competent to deal with the amendment and in that process the merit of the claim and the question whether the effect will be ouster of jurisdiction are extraneous considerations which are not in consonance with the spirit of Order VI Rule 17 of the Code of Civil Procedure. The jurisdiction of the Court is ousted only when the plaint is amended and if after amendment the Court which was originally trying the suit is thereafter lacking pecuniary jurisdiction to adjudicate upon the same, then there are provisions contemplated in the Code of Civil Procedure to deal with such like situations. Therefore, in my considered view, the dismissal of the application for amendment of the plaint on the ground that the proposed amendment would amount to ousting the jurisdiction of the learned trial Court is totally erroneous and not sustainable in law. 12. None of the judgments relied upon by the learned trial Court lay down this proposition of law that a proposed amendment which may result in ouster of jurisdiction of the Court cannot be allowed by that Court on this ground alone. Besides this, the conclusion which has been arrived at by learned trial Court to the effect that the proposed amendment was neither legally permissible nor necessary for proper adjudication is also erroneous because the finding returned by the learned trial Court to the effect that the amendment was not legally permissible has not been substantiated. If the intent of the learned trial Court while it stated that the proposed amendment was not legally permissible was this that the proposed amendment was not legally permissible because it intended to oust the jurisdiction of the learned trial Court, then the learned trial Court should not have ventured to dwell on this aspect of the matter as to whether the application filed for amendment of the plaint was filed after exercising due diligence or not. This is for the reason that if the Court comes to the conclusion that it does not has jurisdiction to adjudicate upon the issue which has been raised before it, then the said Court while declining adjudication for want of jurisdiction cannot venture upon to return its findings on the merits of the issue. On this count also, the order passed by learned trial Court is not sustainable. 13. Learned trial Court has also not elaborated as to how the factum of tentative amount of use and occupation charges fixed by this Court which was subject to the adjustment in the final order of this Court and the tenancy not yet having terminated were relevant to decide an application filed under Order VI Rule 17 of the Code of Civil Procedure. The finding returned by learned trial Court that the application for amendment was filed at a belated stage was also erroneous because by way of proposed amendment, the plaintiff was only praying for amendment in the claim of recovery on the ground that as more than 11 years had passed since the filing of the suit and the arrears of use and occupation charges has arisen from Rs.10,56,437.50/- to Rs.35,18,624/-, as such, the plaint be permitted to be amended for incorporating the same in the plaint so that the plaintiff could lay her claim for recovery of Rs.35,18,624/- instead of Rs.10,56,437.50/-. There is no discussion in the judgment as to how the learned trial Court has come to the conclusion that =due diligence' was not exercised by the plaintiff while filing the application praying for amendment of the plaint. The reasoning given in this regard by the learned trial Court is totally perverse as the grounds given in the application by the plaintiff praying for amendment of the plaint were not appreciated by the learned trial Court in their correct perspective. 14. ?Due diligence? has been defined in Advanced Law Lexicon as under: ?Due diligence. Such watchful caution and foresight as the circumstances of the particular case demands.? 15. ?Due diligence? has been defined in Black's Law Dictionary as under: ?Such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by , a reasonable and prujdent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case.? 16. 15. ?Due diligence? has been defined in Black's Law Dictionary as under: ?Such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by , a reasonable and prujdent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case.? 16. The Hon'ble Supreme Court in Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and others AIR 1957 SC 363 has held that the principles to be followed while allowing amendment in the pleadings are that the amendment sought should satisfy two conditions; (a) not working injustice to the other side; and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. 17. The Hon'ble Supreme Court in Revajeetu Builders and Developers Vs. Narayanaswamy and sons and others (2009) 10 Supreme Court Cases 84 has held: ?31. In our considered view, Order VI Rule 17 is one of the important provisions of the CPC, but we have no hesitation in also observing that this is one of the most misused provision of the Code for dragging the proceedings indefinitely, particularly in the Indian courts which are otherwise heavily overburdened with the pending cases. All Civil Courts ordinarily have a long list of cases, therefore, the Courts are compelled to grant long dates which causes delay in disposal of the cases. The applications for amendment lead to further delay in disposal of the cases. 63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive. 64. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.? 18. The Hon'ble Supreme Court in State of Madhya Pradesh Vs. Union of India and another (2011) 12 Supreme Court Cases 268 has held: ?6. In order to consider the claim of the plaintiff and the opposition of the defendants, it is desirable to refer the relevant provisions. Order VI Rule 17 of the Code of Civil Procedure, 1908 (in short `the Code') enables the parties to make amendment of the plaint which 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." 7. The above provision deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it must be shown that in spite of due diligence, such amendment could not have been sought earlier. 8. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations. 9) Inasmuch as the plaintiff-State of Madhya Pradesh has approached this Court invoking the original jurisdiction under Article 131 of the Constitution of India, the Rules framed by this Court, i.e., The Supreme Court Rules, 1966 (in short `the Rules) have to be applied to the case on hand. Order XXVI speaks about "Pleadings Generally". Among various rules, we are concerned about Rule 8 which reads as under: "8. The Court may, at any stage of the proceedings, allow either party to amend his pleading in such manner and on such terms as may be just, but only such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties." The above provision, which is similar to Order VI Rule 17 of the Code prescribes that at any stage of the proceedings, the Court may allow either party to amend his pleadings. However, it must be established that the proposed amendment is necessary for the purpose of determining the real question in controversy between the parties. 10. This Court, while considering Order VI Rule 17 of the Code, in several judgments has laid down the principles to be applicable in the case of amendment of plaint which are as follows: (i) Surender Kumar Sharma v. Makhan Singh, (2009) 10 SCC 626 , at para 5: "5. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment." (ii) North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (dead) by LRS, (2008) 8 SCC 511 , at para16: "16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs." (iii) Usha Devi v. Rijwan Ahamd and Others, (2008) 3 SCC 717 , at para 13: "13. Mr Bharuka, on the other hand, invited our attention to another decision of this Court inBaldev Singh v. Manohar Singh. In para 17 of the decision, it was held and observed as follows: (SCC pp. Mr Bharuka, on the other hand, invited our attention to another decision of this Court inBaldev Singh v. Manohar Singh. In para 17 of the decision, it was held and observed as follows: (SCC pp. 504-05) "17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court.That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion on the court to allow an amendment of the written statement at any stage of the proceedings." (iv) Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others, (2006) 4 SCC 385 , at paras 15 & 16: "15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties." (v) Revajeetu Builders and Developers v. Narayanaswamy and Sons and Others, (2009) 10 SCC 84 , at para 63: "63. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties." (v) Revajeetu Builders and Developers v. Narayanaswamy and Sons and Others, (2009) 10 SCC 84 , at para 63: "63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive." The above principles make it clear that Courts have ample power to allow the application for amendment of the plaint. However, it must be satisfied that the same is required in the interest of justice and for the purpose of determination of real question in controversy between the parties.? 19. The Hon'ble Supreme Court in Chander Kanta Bansal Vs. Rajinder Singh Anand (2008) 5 Supreme Court Cases 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. 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 in spite 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 herein below: ?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 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.? 20. In view of the discussion held above as well as the law laid down by the Hon'ble Supreme Court, in my considered view, learned trial Court erred in disallowing the application filed by the plaintiff for amendment of the plaint. The reasons given by the learned trial Court for rejecting the said application are neither sustainable on facts nor in law. 21. Accordingly, the petition is allowed. Impugned order passed by the Court of learned Civil Judge (Senior Division), Kangra at Dharamshala in CMA No. 80/2014 in Civil Suit No. 451/13/2003 dated 07.07.2014, vide which the learned Court below had dismissed the application filed by the present petitioner praying for amendment of the plaint is set aside and the application so filed by the petitioner/plaintiff for amendment of the plaint is allowed. It is made clear that post amendment of the plaint whether the learned Court below will have pecuniary jurisdiction or not to adjudicate upon the case shall be independently decided by the Court and thereafter the learned trial Court shall proceed with the matter strictly in accordance with law. Learned Court below is also directed to decide the application of the petitioner/plaintiff for possession of the premises in pursuance to the directions passed in Civil Suit No. 23 of 2003 and LPA No. 9 of 2005 as also the order dated 27.08.2012 in CMPMO Nos. 470 of 2011 and 478 of 2011. It is further clarified that the above directions issued to the learned trial Court shall also obviously be dependent upon the factum of the said Court having pecuniary jurisdiction to adjudicate upon the lis post amendment of the plaint. Petitioner through counsel is directed to put in appearance before the learned trial Court on 03.11.2016, whereafter the learned trial Court will proceed with the matter in accordance with law. With the above directions, the present petition is disposed of, so also the pending application (s), if any. No order as to costs.