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2016 DIGILAW 7 (TRI)

Manoranjan Nath v. Rajesh Roy

2016-01-12

S.C.DAS

body2016
JUDGMENT : With the consent of learned counsel of both side the matter is taken up for hearing and disposal at this stage itself. 2. Heard learned counsel Mr. D.K.Biswas for the petitioner and learned counsel Ms. S. Deb Gupta for the respondent. 3. The respondent as plaintiff instituted Money Suit No.09/2013 in the Court of Civil Judge, Jr. Division, Agartala against the petitioner herein, as defendant, seeking a decree for realization of Rs.32,993/-. While the suit was at the stage of hearing final argument, the plaintiff-respondent filed a petition under Order VI, Rule 17 read with Section 153 and 151 of CPC seeking amendment of the plaint on the ground that there were some typographical mistake due to overlook and prayed for allowing the following amendment:- “SCHEDULE OF AMENDMENT The name of the business in the cause title in page 1 in 3rd line will be Prabhati Concern instead of Prabhati Medical Agency. The name of the business of the plaintiff in page 2 paragraph 1 in 3rd line will be M/S Prabhati Concern instead of Prabhati Medical Agency and the name of the business/shop of the defendant in para 1 of page 2 in the 4th line will be Swasti Medical Hall instead of Maa Medical Hall.” 4. The defendant i.e. the petitioner herein submitted a written objection stating that typographical mistake and errors due to overlook cannot be amended after trial has commenced since there is nothing in the petition that in spite of due 3 diligence the party could not raise the issue before the trial commenced. 5. The petition seeking amendment was registered as Misc. Case No.14/2015 arising out of M.S.09/2013. Learned Civil Judge, Jr. Division (Court No.2) by impugned order dated 07.09.2015 allowed the amendment and challenging that order the present revisional application is filed. 6. It is submitted by Mr. Biswas, learned counsel for the defendant-petitioner that the trial Court itself has observed that there was laches on the part of the plaintiff in seeking the amendment in time but even after that finding the amendment has been allowed. He has also submitted that law has made it very clear that an amendment may be allowed after trial begins, only in the event the plaintiff could not detect the error or mistake in spite of exercise of due diligence. He has also submitted that law has made it very clear that an amendment may be allowed after trial begins, only in the event the plaintiff could not detect the error or mistake in spite of exercise of due diligence. The proviso to Rule 17 of Order VI is an embargo which the Court should follow while allowing amendment after commencement of trial. It is the submission of Mr. Biswas that the plaintiff in his petition has simply stated that it was a typographical error and there is no averment in the petition that the error could not be detected in spite of due diligence before commencement of trial. According to Mr. Biswas the plaintiff is totally negligent in respect of the error which was apparent in the face of the record and when at the stage of argument it was found that the evidence was totally contrary to the pleadings the plaintiff has come with an amendment petition which is detrimental to the interest of the defendant-petitioner. He has also contended that there is no scope to show any sympathy to the plaintiff and the law has to be strictly followed while the plaintiff is found to be negligent and suffering from intentional inaction. 7. He has relied on the decision of the Apex Court in the case of J. Samuel & Ors. V. Gattu Mahesh & Ors., reported in (2012) 2 SCC 300 . It is the submission of Mr. Biswas that the fact of the present case is squarely covered by the fact of that case and the Apex Court has clearly held that amendment cannot be allowed simply on the ground that it was a typographical error unless it is shown that the error could not be detected in spite of due diligence before the commencement of trial. 8. On the other hand, learned counsel Ms. Deb Gupta has submitted that the plaintiff and defendant both are owners of proprietary firms and there is mistake of only mentioning the name of proprietary firm and by the proposed amendment the pleadings has not been sought to be amended. Only the name of the proprietary firm owned by the plaintiff and the defendant has to be amended since those were not correct. Only the name of the proprietary firm owned by the plaintiff and the defendant has to be amended since those were not correct. She has further submitted that it was simply a typographical error that the mistake in mentioning the name of the business firm has occurred and because of overlook that could not be detected before commencement of trial and the trial Court rightly allowed the amendment for fair ends of justice which will cause no prejudice to the defendant-petitioner. She has also submitted that Section 153 of CPC prescribes general power of amendment to amend any defect or error in any proceeding in a suit. According to Ms. Deb Gupta there was no negligence on the part of the plaintiff in taking steps in time and when the error was detected the petition has been filed which has been allowed by the trial Court, subject to payment of cost to the defendant and the order may not be interfered in exercise of power under Article 227 of the Constitution. 9. She has relied on the decision of the Gauhati High Court in the case of Mustt Adiba Abu Bakkar V. Oriental Marketing Corporation, reported in (2010) 6 GLR 645 and the case of Abdul Rehman & Anr. V. Mohd. Ruldu & Ors. reported in (2012) 11 SCC 341 . 10. Section 153 of CPC prescribes general power of amendment which reads as follows:- “153.General power to amend.-- The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.” 11. Order VI, Rule 17 of CPC prescribes the power of amendment of pleadings which reads as follows:- “17. Order VI, Rule 17 of CPC prescribes the power of amendment of pleadings which reads as follows:- “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.” 12. A bare reading of Section 153 of CPC makes it clear that it relates to amendment of defect or error in any proceeding or in a suit and all necessary amendment shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. The provision do not relate to the amendment of the pleadings. It simply relates to the amendment of any defect or error in any proceeding or any suit while it is found that the defect or error required to be removed for determination in real question in controversy. The plaintiff by filing the amendment petition sought for amendment in the title head of the plaint where under the name of the plaintiff’s proprietary firm has been made. That part of the amendment sought by the plaintiff may be termed as a defect or error in the suit and may be amended by exercise of power as contained in Section 153 of CPC. But by filing the same petition, the plaintiff has sought for the amendment in Para 1 of the plaint which is a part of the pleadings. 13. A single bench of the Gauhati High Court in the case of Mustt Adiba Abu Bakkar(supra) has held that mistake or error in the cause title is not a part of the pleadings but it is part of the plaint and that can be corrected by applying power contained in Section 151 of CPC. 13. A single bench of the Gauhati High Court in the case of Mustt Adiba Abu Bakkar(supra) has held that mistake or error in the cause title is not a part of the pleadings but it is part of the plaint and that can be corrected by applying power contained in Section 151 of CPC. Here in this case the plaintiff not only prayed for correction of the error in the cause title of the plaint regarding the name of proprietary firm owned by the plaintiff but also amendment is sought in respect of the pleadings contained in Para 1 of the plaint. Definitely the averments made in Para 1 of the plaint is a part of the pleadings and it is the very basis of the suit of the plaintiff and such amendment cannot be allowed in exercise of power under Section 151 or 153 of CPC. 14. Order VI, Rule 17 deals with amendment of pleadings. Proviso to Rule 17 is a new insertion by the Amendment Act, 2002. The newly added proviso prevent application of 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 be sought earlier. The object behind is to prevent frivolous applications which are filed to delay the trial. 15. No doubt the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice on the basis of the guidelines and principles settled by the judgment laws by different High Courts and the Apex Court. An amendment cannot be claimed as a matter of right and under all circumstances. It is true that the Courts while deciding such prayers should not adopt a hyper technical approach and a liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the proceedings to avoid uncalled for multiplicity of litigation. 16. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the proceedings to avoid uncalled for multiplicity of litigation. 16. It is an admitted position that both the plaintiff and the defendant are owners of proprietary firms. The plaintiff in the title head of the plaint has mentioned that he is the owner of the proprietary firm named “Prabhati Medical Agency” and in his pleadings in Para 1 he has reiterated it that he is the proprietor of M/S “Prabhati Medical Agency”. Now by amendment he is seeking to incorporate the name of his firm as “Prabhati concern” in place of “M/S Prabhati Medical Agency”. In the title head of the defendant in the first page of the plaint the plaintiff has mentioned that the defendant Manoranjan Nath is the proprietor of “Swasti Medical Hall” but in the pleadings in Para 1 the plaintiff has mentioned that the defendant has a medicine shop namely “Maa Medical Hall” and now by filing the amendment petition, the plaintiff sought replacement of the name of firm “Maa Medical Hall” with the name of the firm “Swasti Medical Hall”. 17. The averments sought in Para 1 of the plaint in respect of the firm owned by the plaintiff-respondent does not appear to be a typographical mistake. The Supreme Court in the case of J. Samuel (supra) has clearly observed that the term “typographical error” is defined as a mistake in the printed or 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. The plaintiff clearly mentioned the name of the firm owned by the plaintiff himself and the defendant in his pleadings in Para 1 and such mention of the name cannot be termed to be a typographical error or mistake. Even if it was a typographical error or mistake the plaintiff was supposed to satisfy the Court that in spite of due diligence those mistakes or errors could not be raised before commencement of trial. Unfortunately, the plaintiff in his petition seeking amendment has stated nothing in this regard that in spite of due diligence the mistake or error whether it was typographical or otherwise could not be detected. Unfortunately, the plaintiff in his petition seeking amendment has stated nothing in this regard that in spite of due diligence the mistake or error whether it was typographical or otherwise could not be detected. The Supreme Court in the case of J. Samuel (supra) clearly held that unless it is clearly shown that in spite of due diligence the error or mistake in the pleadings could not be detected before commencement of trial the proviso to Rule 17 of Order VI is a clear embargo in entertaining or allowing any amendment to the pleadings. 18. The plaintiff sought the amendment only saying that it was typographical mistake and it was an overlook and not a single word spared in the petition that in spite of due diligence the mistake or error could not be detected before commencement of trial. For ready reference let us quote here Para 2 and 3 of the amendment petition which read as follows:- “2. That at the time of filing the above mentioned suit the plaintiff correctly mentioned in the cause title the name of the business/shop of the defendant and Swasti Medical Hall. But due to typographical mistake the name of the business of the defendant is wrongly written in the paragraph 1 of the plaint. It is also mentioned that the plaintiff is the proprietor of Prabhati Concern as well as Prabhati Medical Agency and due to mistake/overlook the plaintiff mentioned Prabhati Medical Agency instead of M/S Prabhati Concern. Moreover, the documents which are already exhibited by the Ld. Court supported the case of the plaintiff petitioner. 3. That in the paragraph 1 of the plaint the name & style of the business of the plaintiff will be M/S Prabhati Concern instead of M/S Prabhati Medical Agency and the name & style of the business of the defendant will be Swasti Medical Hall instead of Maa Medical Hall. The cause title the name & style of the cause title will be Prabhati Concern instead of Prabhati Medical Agency. The more is described in the Schedule below. Moreover the plaintiff petitioner at the time of filing his examination in chief by way of affidavit correctly stated the name and style of the business of the plaintiff petitioner and the defendant. The more is described in the Schedule below. Moreover the plaintiff petitioner at the time of filing his examination in chief by way of affidavit correctly stated the name and style of the business of the plaintiff petitioner and the defendant. But due to overlook and typographical mistake the name and style of the business was wrongly written in the paragraph 1 of the plaint.” 19. It is apparently clear from the above averments seeking amendment that the plaintiff did not assert by way of statement that the typographical mistake could not be detected before commencement of trial in spite of due diligence. The plaintiff has failed to present a petition asserting reasons in accordance with the provisions of law. The trial Court while made an observation in the order that the plaintiff was negligent, should not have allowed the amendment petition as sought by the plaintiff since the law does not permit it. No doubt technicalities should not be attached with undue importance but the legal requirement cannot be ignored saying that it was a technicality. Learned counsel Ms. S. Deb Gupta appears to have representing the plaintiff while the suit was filed and so, it was the duty of the learned counsel to examine the pleadings carefully before it was filed and again before commencement of trial. Since neither the plaintiff nor the learned counsel representing the plaintiff exercised due diligence in respect of the mistake or error in the pleadings, and since there is no averment that in spite of due diligence those mistakes or errors could not be detected before commencement of trial, the amendment sought cannot be allowed in view of the observation made by the Apex Court in the case of J. Samuel (supra). For ready reference, the observation of the Court in Para 17 to 22 of the judgment are quoted which read as follows:- “17.An argument was advanced that since in the legal notice sent before the 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 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". 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.” 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. 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 "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.” 20. In the case of Abdul Rehman (supra) the Apex Court has observed that the object of Order VI, Rule 17 is that the Court should try the cases on merit and should consequently allow the amendments that may be necessary for determining real question in controversy between the parties provided that it does not cause injustice or prejudice to the other side. The purpose of allowing amendment is to minimize litigation and plea that relief sought by way of amendment was barred by time is to be considered in the light of facts and circumstances of each case. 21. The fact of this case is quite different. The purpose of allowing amendment is to minimize litigation and plea that relief sought by way of amendment was barred by time is to be considered in the light of facts and circumstances of each case. 21. The fact of this case is quite different. The amendment may be necessary for determining the real question in controversy but the issue in this case is that the plaintiff has failed to assert that the mistake or error sought to be amended could not be raised in spite of due diligence before commencement of trial. So the ratio of that decision cannot be applied in the facts of this case. 22. The proviso to Rule 17 of Order VI cannot be ignored while considering an amendment petition. It is clearly an embargo in allowing an amendment unless the Court comes to a conclusion that the concerned party could not make the amendment in spite of due diligence before commencement of trial. All Courts are bound to give proper weight age to the provisions as otherwise it will be meaningless. While seeking an amendment of pleadings after commencement of trial, the party seeking amendment is bound to satisfy the Court and the Court has to arrive at a conclusion that the concerned party could not raise the issue in spite of due diligence. 23. In view of the discussions made above, I am of considered opinion that the trial Court committed a mistake in allowing the amendment without coming to the conclusion that in spite of due diligence the party could not raise it before commencement of trial and hence, the order dated 07.09.2015 passed by the learned Civil Judge, Jr. Division, Court No.2, Agartala, West Tripura, in Civil Misc.14 of 2015 arising out of M.S. 9 of 2013 is liable to be interfered and accordingly it is set aside. 24. The revision application is accordingly allowed. 25. Send a copy of this Judgment/Order to the concerned Court.