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2016 DIGILAW 351 (RAJ)

Luta Ram v. Champa Devi

2016-03-02

ARUN BHANSALI

body2016
ORDER Arun Bhansali, J. Heard learned counsel for the parties. The present writ petition has been filed by the petitioner aggrieved against rejection of the application under Order 6, Rule 17 CPC by the trial court. 2. The petitioner by way of the proposed amendment, wanted to add additional plea regarding the documents in question which was the basis for filing the suit for specific performance that the same were not admissible in evidence on account of deficiency in payment of stamp duty. 3. The trial court after hearing the parties, came to the conclusion that on account of proviso to Rule VI, Rule 17 CPC, the application was not entertain able and consequently rejected the same. 4. Learned counsel for the petitioner submits that the trial court was not justified in rejecting the application, inasmuch as, the objection was legal and could be raised at any stage. 5. It is further submitted that regarding the deficiency of stamp duty, the petitioner has filed revision petition under Section 71 of the Rajasthan Stamp Act, 1998, which is pending consideration and, therefore, the hearing of the present writ petition may be deferred. 6. Having considered the submissions made by learned counsel for the petitioner, this Court is of the opinion that the bare look at the application under Order 6, Rule 17 CPC clearly shows that the petitioner has failed to make any averment whatsoever regarding compliance of proviso to Order 6, Rule 17 CPC. 7. This Court in Meera Ben v. Amritlal and anr. S.B. Civil Writ Petition No. 1669/2015 decided on 18.02.2015, after referring to two judgments of Hon'ble Supreme Court has held as under:- “From the above averments it is apparent that the petitioner has failed to indicate any reason whatsoever necessitating filing of the amendment application as required by proviso to Order 6, Rule 17 CPC. The provisions of Order 6, Rule 17 CPC read as under:- “17. The provisions of Order 6, Rule 17 CPC read 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.” Under the proviso, an application seeking amendment after the trial has commenced cannot be allowed 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; for attracting the said provision, the minimum requirement in an application under Order 6, Rule 17 CPC seeking amendment in the plaint after commencement of trial is that the applicant has to make out a case that despite due diligence the matter could not be raised before the commencement of the trial; however, in the present case, not a word has been indicated by the plaintiff in this regard. Hon'ble Supreme Court in the case of Vidyabai and ors. v. Padmalatha and anr. (2009) 2 SCC 409 while dealing with the proviso to Order 6, Rule 17 CPC observed as under:- “10. ......It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. 11. From the order passed by the learned trial Judge, it is evident that the respondents had not been able to fulfill the said precondition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lie of examination-in-chief of the witnesses, in our opinion, would amount to “commencement of proceeding”. 15. .......The ratio in Kailash was reiterated stating that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence. 19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.” Hon'ble Supreme Court clearly laid down that the proviso was mandatory; the jurisdiction to allow amendment is taken away unless the Court comes to the conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial; the proviso restricts the power of the Court and unless the jurisdictional fact i.e. the aspect pertaining to due diligence is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint. It was further laid down with reference to various judgments that filing of an affidavit in lieu of examination in chief of the witness would amount to commencement of proceeding and the trial is deemed to commence when the issues are framed and the case is set down for recording of evidence. As to what is meant by due diligence, the same has been explained by Hon'ble Supreme Court in J. Samuel and ors. v. Gatuu Mahesh and ors. : (2012) 2 SCC 300 as under:- “19. Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. As to what is meant by due diligence, the same has been explained by Hon'ble Supreme Court in J. Samuel and ors. v. Gatuu Mahesh and ors. : (2012) 2 SCC 300 as under:- “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. 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.” From the law laid down by Hon'ble Supreme Court in the cases of Vidyabai (supra) and J. Samuel (supra), it is apparent that in the present case the trial has already commenced and, therefore, it was incumbent on the petitioner to make out a case that in spite of due diligence the matter could not be raised before the commencement of trial; as already noticed hereinbefore, not a word has been indicated in the application in this regard and, therefore, jurisdictional fact for invoking provisions of Order 6, Rule 17 CPC have not been alleged in the application and, therefore, the trial court was justified in rejecting the application filed by the petitioner.” In view of the fact that petitioner has failed to make any averments regarding the proviso to Rule VI, Rule 17 CPC, the application was rightly rejected by the trial court. 8. So far as the pendency of the revision filed by the petitioner is concerned, any order passed on the said revision petition would give a fresh cause to the petitioner, and in case any such application is filed by the petitioner, the same shall be decided by the trial court on its own merit. With the above observations, the writ petition filed by the petitioner is dismissed.