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2016 DIGILAW 238 (TRI)

Biswajit Deb S/o Sri Runu Chandra Deb v. Ashit Deb S/o Sri Runu Chandra Deb

2016-09-07

T.VAIPHEI

body2016
JUDGMENT : This civil revision is directed against the order dated 30-5-2016 passed by the learned Civil Judge, Junior Division, Court No. 3, Agartala rejecting the application of the petitioner for amending his plaint. 2. Undoubtedly, the application for amendment was filed by the petitioner after framing of the issues, to be precise, at the stage of cross-examination of the petitioner’s witnesses. According to the petitioner, the figure “2013” appearing in the 2nd line of para 11 of the plaint has been wrongly inserted and should be substituted by the figures “2014”. The petitioner further stated that the area of the suit land has been wrongly mentioned as “26 ft. x 49 ft.” in para 19 of the plaint which required to be amended to 13ft. x 75 ft. The proposed amendment was orally opposed by the respondent. The learned Civil Judge by the impugned order refused to grant leave to amend the plaint on the ground that the affidavit-in-chief had not only been filed but he was granted adjournment time and again, but, instead of offering his witnesses for cross-examination, he suddenly filed this belated application for amendment. The learned Civil Judge held that the application of the petitioner was barred by the proviso to Order 6, rule 17, CPC and that the petitioner was merely adopting dilatory tactics to delay disposal of the suit. The trial court further held that the mistakes sought to be corrected could be done under Section 152 CPC before passing the decree if he could prove his case. 3. After hearing the learned counsel for the petitioner and on perusing the impugned order together with the application for amendment, the plaint as well as the written statement, which are annexed to revision petition as Annexure-A-2, Annexure-B-2 and Annexure-C-2, I do not find any reason for interfering with the impugned order. Order 6, Rule 17, CPC is in the following terms: “17. Order 6, Rule 17, CPC is in the following terms: “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.” 4. The scope of Order 6, Rule 17, CPC including the newly inserted proviso came up for consideration before the Apex Court in J. Samuel v. Gattu Mahesh, (2012) 2 SCC 300 and was explained in the following manner: “18. The primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The court’s discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. However, to balance the interests of the parties in pursuit of doing justice, the proviso has been added which clearly states 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.” (emphasis supplied) 19. Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term “due diligence” is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial. 20. A party requesting a relief stemming out of a claim is required to exercise due diligence and it is a requirement which cannot be dispensed with. The term “due diligence” determines the scope of a party’s constructive knowledge, claim and is very critical to the outcome of the suit. 21. In the given facts, there is a clear lack of “due diligence” and the mistake committed certainly does not come within the preview of a typographical error. The term “typographical error” is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore, the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code. 22. The claim of typographical error/mistake is baseless and cannot be accepted. In fact, had the person who prepared the plaint, signed and verified the plaint showed some attention, this omission could have been noticed and rectified there itself. In such circumstances, it cannot be construed that due diligence was adhered to and in any event, omission of mandatory requirement running into 3 to 4 sentences cannot be a typographical error as claimed by the plaintiffs. All these aspects have been rightly considered and concluded by the trial court and the High Court has committed an error in accepting the explanation that it was a typographical error to mention and it was an accidental slip.” 5. All these aspects have been rightly considered and concluded by the trial court and the High Court has committed an error in accepting the explanation that it was a typographical error to mention and it was an accidental slip.” 5. Thus, it is clear that the parties to the suit are permitted to amend their pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them. The Courts shall have to be liberal in accepting the same if such an application is made before the commencement of the trial. However, if an application for amendment is made after the commencement of the trial, in that event, the court has to be satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. On going through the plaint, nowhere is it pleaded that the proposed amendments are necessary for the purpose of determining the real questions in controversy between the parties. The wrong figures and the area of the land are not in dispute as evident from the written statement nor are they necessary for determining the questions in controversy. Neither is there any averment to that effect. The learned Civil Judge is correct in holding that these typographical mistakes could be corrected before or at the time of passing a decree provided the petitioner could prove his case. In the instant case, the application for amendment was filed only after issues have been framed and the witnesses of the petitioner are due for cross-examination. In my judgment, the errors sought to be corrected are also glaring errors and had the person who prepared the plaint, signed and verified the plaint showed some attention before filing it, this errors could have been easily detected and rectified then and there. In the view that I have taken, the learned Civil Judge did not commit any jurisdictional error in passing the impugned order. In the view that I have taken, the learned Civil Judge did not commit any jurisdictional error in passing the impugned order. I have carefully gone through the decisions of the Apex Court cited by the learned counsel for the petitioner, namely, South Konkan Distilleries v. Prabhakar Gajanan Naik, (2008) 14 SCC 632 and Baldev Singh and another v. Manohar Singh, (2006) 6 SCC 498 to contend that it is always open to the court to allow an amendment if it is of the view that allowing it would sub-serve the ultimate cause of justice. There can be no quarrel with this proposition of law, but in the light of my findings, can it still be said that the cause of justice would be sub-served by allowing the amendment? The answer must be in the negative. I am rather constrained to observe that the petitioner appears to be indulging in dilatory tactic to delay the disposal of the suit so that maximum harassment and vexation are caused to the defendant. If such type of application is again filed by the petitioner in future, heavy exemplary cost shall be imposed him by the trial court. No other issue survives for consideration. 6. Resultantly, this revision petition has no merit and is, accordingly, dismissed at the very threshold without issuing notice to the respondent. No cost is, however, imposed upon him at this stage. An attempt shall be made by the trial court to dispose of the suit without any delay.