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2016 DIGILAW 2451 (ALL)

Sahdeo Singh v. Laxmi Devi

2016-07-14

RAJAN ROY

body2016
JUDGMENT Rajan Roy,J. Heard learned counsel for the parties. 2. This is a petition under Article 227 of the Constitution of India filed by the defendant challenging the judgment and order dated 06.05.2016 passed by the Revisional Court as well as the judgment and order dated 13.04.2015 passed by the Regular Court in Civil Suit No. 1923 of 2010 rejecting the amendment application of the defendant proposing amendments in the written statement. 3. The respondent herein who is the plaintiff filed a suit for cancellation of sale deed alleging fraud wherein it was contended that he was mislead by the defendant, who was his son-in-law to come along with him for standing security for an accused in a criminal matter, in pursuance to which he went along with him on 30.03.2010, however, taking advantage, he got his thumb impression on some papers and certain blank papers which were used for execution and registration of the sale deed in question in respect of the plot of agricultural land which was his only source of livelihood and in respect of which he had already executed a will deed in favour of the other son -in-law. 4. The suit was instituted in the year 2010. The written statement was filed by the petitioner/defendant in the year 2011, inter alia, stating in Para 31 that the plaintiff had executed the sale deed on 30.03.2010, but, by the time the witnesses could put their signatures on the said document the Registry had closed, as such, the sale deed was registered on the subsequent date i.e. 31.03.2010. Issues were framed in the suit on 11.03.2015 and documentary evidence were filed by the opposite parties. Thereafter, the stage of evidence i.e. commencement of trial came and the examination-in-chief through filing of affidavits was undertaken and matter was fixed for cross examination of the witnesses. In the meantime, i.e. on the date on which the affidavits by way of examination-in-chief were filed on 11.03.2015, an application for amendment was filed by the petitioner/defendant proposing amendments in the written statement in paragraph nos. 28 and 31 thereof. The application for amendment was filed four years after the filing of the written statement. The amendment proposed in para no. 28 was based on typographical error as the date 03.03.1980 had been erroneously mentioned, whereas, it should have been 30.03.2010. This amendment was allowed. 28 and 31 thereof. The application for amendment was filed four years after the filing of the written statement. The amendment proposed in para no. 28 was based on typographical error as the date 03.03.1980 had been erroneously mentioned, whereas, it should have been 30.03.2010. This amendment was allowed. The other amendment proposed was the deletion of existing paragraph no. 31 and in its place substitution of a different plea. The paragraph proposed to be substituted in place of the existing paragraph no. 31 stated that the sale deed was presented in the Registry Office when certain deficiency in the stamp was pointed out by the employees of the Registry Office on account of which the documents could not be registered on 30.03.2010. On the next date i.e. 31.03.2010, the deficient stamps were purchased and after drafting/ typing and reading out the sale document before the Registrar, the same was registered. It is pertinent to mention that in the earlier paragraph 31 these facts had not been mentioned and in fact on a reading of paragraph nos. 28 to 31 it was borne out that the drafting/typing and signature/ putting of thumb impression on the sale deed i.e. its execution, was carried out on 30.03.2010 but by the time this could be completed as the Registrar Office had closed, therefore, the documents were registered on the next date i.e. 31.03.2010. It is also pertinent to mention that the case of the plaintiff was that he was present at the place only on 30.03.2010 and not on 31.03.2010. 5. Objections to the amendment application were filed. 6. The trial Court after considering the application and objections thereof rejected the same on the ground that the defendant could not resile from the statements already made in the existing written statement in paragraph no. 31 and the pleadings proposed to be substituted in its place were entirely different. The matter went in appeal at the behest of the defendant/ petitioners wherein the order of the trial Court has been affirmed. The trial Court while rejecting the application has given cogent reasons in support thereof. It has taken note of the stage of trial i.e. trial had already commenced as also the amended provisions of Order VI Rule 17 specially the proviso thereof. The trial Court while rejecting the application has given cogent reasons in support thereof. It has taken note of the stage of trial i.e. trial had already commenced as also the amended provisions of Order VI Rule 17 specially the proviso thereof. It has recorded a finding that the suit is fixed for cross examination of the witnesses and there is likelihood of the interest of the plaintiff being prejudiced and the trial itself being delayed if the amendment proposed is allowed. It has also held that the defendant could not resile from the statementsdmissions made in the written statement by proposing an amendment thereto so as to substitute entirely different pleadings. 7. Learned counsel for the petitioner has placed reliance upon the judgments reported (2007) 6 SCC 167 ; Andhra Bank Vs. ABN Amro Bank N.V. and Others, (2015) 10 SCC 203 ; Ram Niranjan Kajaria Vs. Sheo Prakash Kajaria and Others and connected matter and (2006) 6 SCC 498 ; Baldev Singh and others Vs. Manohar Singh and Another to contend that the amendment proposed is only to explain the pleadings already existing. Even an admission can be explained by an amendment. In fact there was no admission which was sought to be withdrawn and Courts below have erred in rejecting the application for amendment as the amendment was necessary for just and proper for adjudication of the case. 8. Learned counsel for the respondent/plaintiff has supported the impugned orders relying upon the decision reported in (2013) 9 SCC 349 ; S. Malla Reddy Vs. Future Builders Cooperative Housing Society and others and connected matters. 9. Having heard learned counsel for the parties and perused the records in the light of the legal position enunciated in various decisions of the Supreme Court, this Court is of the view that in view of the amendment in Order VI Rule 17 C.P.C. especially considering the proviso thereof firstly the petitioner/defendant was not diligent enough in seeking an amendment in the written statement which he could have sought much earlier but he filed the application for amendment four years after having filed the written statement that too when the documentary evidence had already been adduced, the examination-in-chief through affidavit had also taken place and the matter was posted for cross examination of witnesses meaning thereby the trial had already commenced. Moreover, the Court finds that the pleadings sought to be substituted in place of existing paragraph 31 by deleting, it are materially different from the earlier existing pleadings which were bound to prejudice the case of the plaintiff as has already been noted herein above. Reference may be made in this regard to the pronouncement of the Supreme Court in the case of Salem Advocate Bar Association Vs. Union of India reported in (2005) 6 SCC 344 wherein considering the validity of the amendments under Order VI Rule 17 C.P.C. which have come into effect from 01.07.2002 it observed as under: - "Order VI Rule 17 of the Code 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 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. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision." 10. Reference may also be made to the judgment of this Supreme Court rendered in the case of Raj Kumar Gurawara (Dead) Thr. Lrs. Vs. M/s S. K. Sarwagi & Co. Pvt. Ltd. reported in (2008) 14 SCC 364 while considering the provisions of Order VI Rule 17 C.P.C. as under: - "12. In order to consider whether the appellant/plaintiff has made out a case for amendment of his plaint, it is useful to refer Order VI Rule 17 CPC which reads as under: - "17. Pvt. Ltd. reported in (2008) 14 SCC 364 while considering the provisions of Order VI Rule 17 C.P.C. as under: - "12. In order to consider whether the appellant/plaintiff has made out a case for amendment of his plaint, it is useful to refer Order VI Rule 17 CPC 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." The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this rule is subject to proviso appended therein. The said rule with proviso again substituted by Act 22 of 2002 with effect from 01.07.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings are able to satisfy the court that in spite of due diligence they could not raise the issue before the commencement of trial and the court is satisfied with their explanation, amendment can be allowed even after commencement of the trial. 13. To put it clear, Order VI Rule 17 C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso. 17. We have already explained the implication of proviso to Rule 17. Though even after commencement of the trial, parties to the proceeding are entitled to seek amendment, in the light of the factual details such as clear information in the reply notice prior to the filing of the suit and specific plea in the written statement of D-1 which contained details of government orders leasing out the suit property in favour of D-2, the action of the plaintiff at the stage of argument can not be permitted. Admittedly, the plaintiff failed to adhere to the said recourse at the appropriate time." 11. The Supreme Court again had the occasion to consider the aforesaid provision in the case of J. Samuel & Ors. Vs. Gattu Mhesh & Ors. reported in (2012) 3 SCC 300 wherein it held as under: - "16.As stated earlier, in the present case, the amendment application itself was filed only on 24.09.2010 after the arguments were completed and the matter was posted for judgment on 04.10.2010. On proper interpretation of proviso to Rule 17 of Order VI, the party has to satisfy the Court that he could not have discovered that ground which was pleaded by amendment, in spite of due diligence. No doubt, Rule 17 confers power on the court to amend the pleadings at any stage of the proceedings. However, proviso restricts that power once the trial has commenced. Unless the Court satisfies (sic itself) that there is a reasonable cause for allowing the amendment, normally the court has to reject such request. 17. No doubt, Rule 17 confers power on the court to amend the pleadings at any stage of the proceedings. However, proviso restricts that power once the trial has commenced. Unless the Court satisfies (sic itself) that there is a reasonable cause for allowing the amendment, normally the court has to reject such request. 17. An argument was advanced that since in the legal notice sent before filing of the suit, there is reference to readiness and willingness and the plaintiff has also led in evidence, nothing precluded the court from entertaining the said application with which we are unable to accept in the light of Section 16(c) of the Specific Relief Act as well as proviso to Order VI Rule 17. The only reason stated so in the form of an affidavit is omission by "type mistake". Admittedly, it is not an omission to mention a word or an arithmetical number. The omission is with reference to specific plea which is mandated in terms of Section 16(c) of the Specific Relief Act. 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. 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 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. 23. Though the counsel for the appellants have cited many decisions, on perusal, we are of the view that some of those cases have been decided prior to the insertion of Order VI Rule 17 with proviso or on the peculiar facts of that case. This Court in various decisions upheld the power that in deserving cases, the Court can allow delayed amendment by compensating the other side by awarding costs. The entire object of the amendment to Order VI Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other's case. It also helps checking the delays in filing the applications. [vide Aniglase Yohannan vs. Ramlatha and Others, (2005) 7 SCC 534 , Ajendraprasadji N. Pandey vs. Swami Keshavprakeshdasji N. (2006) 12 SCC 1 , Chander Kanta Bansal vs. Rajinder Singh Anand, (2008) 5 SCC 117 , Rajkumar Gurawara vs. S.K.Sarwagi and Co. (P.) Limited and Another, (2008) 14 SCC 364 , Vidyabai and Others vs. Padmalatha and Another, (2009) 2 SCC 409 and Man Kaur (dead) By LRS vs. Hartar Singh Sangha, (2010) 10 SCC 512 ." 12. In view of the above enunciation of law, as, the object of the amended proviso to Order VI Rule 17 is to prevent frivolous applications and dilatory tactics due diligence by the party is necessary in moving such application. In view of the above enunciation of law, as, the object of the amended proviso to Order VI Rule 17 is to prevent frivolous applications and dilatory tactics due diligence by the party is necessary in moving such application. The term 'due diligence' is specifically used in the Code so as to provide a test for determining whether to exercise discretion in situations of requested amendment after the commencement of trial. Therefore, pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. In the former case, the party is not prejudiced whereas in the latter it could be prejudiced. The entire object of the amendment to Order VI Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial and to check dilatory tactics as has been held in J. Samual (supra) wherein the earlier decisions regarding delayed amendment by compensating the other side by awarding costs was considered and it was observed that some of these cases were decided prior to the insertion of amended proviso to Order VI Rule 17 which was brought about to overcome the aforesaid difficulty. 13. In view of the above and for the reasons mentioned herein above, the Court finds that the petitioner/defendant did not exercise due diligence which it could have, as, the written statement had been filed way back in the year 2011. No justification was put forth for preferring an amendment therein after four years in 2015 that too after commencement of the trial. Moreover, as already stated, the respondent/plaintiff would be prejudiced by the amendment proposed as it attempts to introduce pleading that are materially different from the existing written statement. 14. For the reasons aforesaid, none of the decision cited by the learned counsel for the petitioner help his cause of the present case. The petition is, accordingly, dismissed. There shall be no orders as to costs.