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2019 DIGILAW 1754 (ALL)

Sardar Joginder Singh v. Nirmal Robinson Clifford

2019-07-23

IRSHAD ALI

body2019
JUDGMENT : Irshad Ali, J. 1. Heard Sri S.K. Mehrotra, learned counsel for the petitioners and to Sri Akhilesh Kalra, learned counsel for respondent Nos.1 and 2. 2. By means of the present writ petition, the petitioners are challenging the order dated 03.05.2019 Annexure No.1 to the writ petition passed by the Additional District Judge, Fast Tract Court (FTC) IInd, Balrampur in Civil Appeal No.28 of 2017, whereby the amendment application was allowed. 3. Brief fact of the case is that original Suit No.119 of 1998 seeking relief for possession and permanent prohibitory injunction relating to the house in suit was filed by the respondent Nos.1 and 2, which was contested and title of the plaintiff was seriously disputed and denied by the defendants/petitioners in the written statement. The Civil Judge (Senior Division), Balrampur dismissed the original suit No.119 of 1998 by holding that the plaintiffs/respondent Nos.1 and 2 failed to prove their ownership in the property in dispute. The respondent Nos.1 and 2 filed Civil Appeal No.28 of 2017, which is pending. The respondent Nos.1 and 2 moved an application under Order 6 Rule 17 CPC seeking amendment in the plaint of the above suit, proposing to incorporate the pedigree of the plaintiffs/appellants. 4. The petitioners filed their objection stating that under Order 6 Rule 17 CPC, there is some prohibition in regard to making of amendment and in this regard specific statement of fact was made in paragraph No.2 of the objection filed by the petitioner. 5. The learned Additional District Judge, FTC IInd, Balrampur vide order dated 03.05.2019 allowed the application and permitted the amendment in the plaint, which has been assailed in the present writ petition. 6. Submission of learned counsel for the petitioners is that while passing the impugned order, the Additional District Judge, FTC IInd, Balrampur has no-where considered the provisions contained under the proviso of Order 6 Rule 17 CPC, wherein it has been provided that after the commencement of proceeding of suit, he has to record the reasons on the point of due diligence that why the amendment could not be made. He further submitted that after the dismissal of the suit and after filing of the appeal, almost 22 years after the amendment application was moved seeking amendment, therefore, there was inordinate delay in seeking amendment in the plaint, which is not permissible in law. He further submitted that after the dismissal of the suit and after filing of the appeal, almost 22 years after the amendment application was moved seeking amendment, therefore, there was inordinate delay in seeking amendment in the plaint, which is not permissible in law. In support of his submissions, he placed reliance upon following judgments: (1) J. Samuel and others Vs. Gattu Mahesh and others, 2012 1 JT 169 , paragraph No.11. (2) Chander Kanta Bansal Vs. Rajinder Singh Anand, 2008 AIR (SC) 2234, paragraph Nos.8 to 13. 7. He next submitted that the delay occasioned in seeking amendment on the ground that due to wrong advice of the counsel, certain pleadings could not be made in the plaint and submitted that the delay occasioned invariably could not be condoned on account of some wrong legal advice given by the counsel. In support of his submission, he placed reliance upon following judgments: (1) Shanti Devi and other Vs. Gomit Devi and others, 2013 121 RD 203 , paragraph No.2. (2) Pramod Urf Raju and others Vs. State of U.P. and others, 2016 114 ALR 669, paragraph No.9. 8. On the other hand, learned counsel for respondent Nos.1 and 2 submitted that in the objection filed to the amendment application, there were no pleadings, as has been submitted by learned counsel for the petitioners before the appellate Court. 9. He next submitted that the Additional District Judge, FTC IInd, Balrampur while passing the impugned order has taken care of the provisions contained under Order 6 Rule 17 CPC and thereafter, passed the order, which is under challenge in the writ petition. Therefore, his submission is that the order does not suffer from any infirmity or illegality and is a just and valid order. 10. He further submitted that the appellate Court while allowing the amendment application has taken care of the provisions contained under Order 6 Rule 17 CPC and by recording finding, the application was allowed. 11. Having heard the rival contentions advanced by learned counsel for the parties, I perused the material on record and the law reports cited by learned counsel for the petitioners. 12. 11. Having heard the rival contentions advanced by learned counsel for the parties, I perused the material on record and the law reports cited by learned counsel for the petitioners. 12. To resolve the controversy involved in the present writ petition, the provisions of Order 6 Rule 17 CPC are being quoted below: "Order 6 Rule 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." 13. On its perusal, it is evident that in case the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence the party could not move application for amendment before commencement of trial, all such amendment shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. It further provides 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 raise the matter before the commencement of trial. Learned counsel for the petitioners placed emphasis on the word 'due diligence' and cited two judgments that while dealing with the matter of amendment, the Additional District Judge has ignored the relevant question of law. Relevant portion of the judgments rendered on the point are being quoted below: (1) J. Samuel and others Vs. Gattu Mahesh and others (Supra): "(11) 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. 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 that there is a reasonable cause for allowing the amendment normally the court has to reject such request. 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." (2) Chander Kanta Bansal Vs. Rajinder Singh Anand (Supra): "(8) In order to find out whether the application of the defendant under Order VI Rule 17 for amendment of written statement is bonafide and sustainable at this stage or not, it is useful to refer to the relevant provisions of CPC. Order 6 Rule 17 reads thus: "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." This rule was omitted by the Code of Civil Procedure (Amendment) Act, 1999. However, before the enforcement of the Code of Civil Procedure (Amendment) Act, 1999, the original rule was substituted and restored with an additional proviso. However, before the enforcement of the Code of Civil Procedure (Amendment) Act, 1999, the original rule was substituted and restored with an additional proviso. The proviso limits the power to allow amendment after the commencement of trial but grants discretion to the court to allow amendment if it feels that the party could not have raised the matter before the commencement of trial in spite of due diligence. It is true that the power to allow amendment should be liberally exercised. The liberal principles which guide the exercise of discretion in allowing the amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be granted, while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon the opposite party under pretence of amendment. (9) With a view to shorten the litigation and speed up the trial of cases Rule 17 was omitted by amending Act 46 of 1999. This rule had been on the statute for ages and there was hardly a suit or proceeding where this provision had not been used. That was the reason it evoked much controversy leading to protest all over the country. Thereafter, the rule was restored in its original form by amending Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to some extent. The new proviso lays down that no application for amendment shall be allowed after the commencement of 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. But whether a party has acted with due diligence or not would depend upon the facts and circumstances of each case. 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. (10) 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 others case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases. (11) Keeping the above broad principles in mind, let us ascertain whether the defendant has justiciable cause to file an application praying for amendment of a written statement for bringing an agreement dated 10.09.1982. We have already referred to the fact that the plaintiff had approached the court seeking a decree for mandatory injunction as early as on 1986. We also refer to the fact that within a short duration i.e. in 1986 itself, the defendant has filed a written statement. Absolutely, there is no whisper about the prior partition agreement dated 10.09.1982. No doubt, in the application for amendment, it was stated that her son who is a Chartered Accountant all along was looking after this suit and he died in the year 1998. It is also available from the very same application that apart from her first son, namely, Sunit Gupta, defendant has another son by name Navneet Agarwal. Admittedly, the son who looking after the suit was none else than a Chartered Accountant. In such circumstances, if the alleged agreement dated 10.09.1982 between the plaintiff and defendant was in existence nothing prevented her son, Chartered Accountant, to bring it to the notice of her counsel and refer it in the written statement filed in the year 1986. It is relevant to mention that in the reply, the plaintiff has specifically denied the same and asserted that the alleged agreement/partition deed dated 10.09.1982 is a forged document and based on the same, the proposed amendment cannot be allowed. It is also not in dispute and best known to both parties the suit which is of the year 1986 came to be taken up for trial only in 2004 and admittedly on the date of filing of the petition for amendment, the trial was on the verge of completion. It is also not in dispute and best known to both parties the suit which is of the year 1986 came to be taken up for trial only in 2004 and admittedly on the date of filing of the petition for amendment, the trial was on the verge of completion. It was brought to our notice that both sides have closed their evidence and completed their argument, but only at this stage the defendant filed the said application for amendment of her written statement. 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. 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 reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs. It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial. As mentioned earlier, in the case on hand, the application itself came to be filed only after 18 years and till the death of her first son Sunit Gupta, Chartered Accountant, had not taken any step about the so-called agreement. Even after his death in the year 1998, the petition was filed only in 2004. As mentioned earlier, in the case on hand, the application itself came to be filed only after 18 years and till the death of her first son Sunit Gupta, Chartered Accountant, had not taken any step about the so-called agreement. Even after his death in the year 1998, the petition was filed only in 2004. The explanation offered by the defendant cannot be accepted since she did not mention anything when she was examined as witness. (12) As rightly referred to by the High Court in Union of India vs. Pramod Gupta (dead) by LRs and Others, 2005 12 SCC 1, this Court cautioned that delay and laches on the part of the parties to the proceedings would also be a relevant factor for allowing or disallowing an application for amendment of the pleadings. (13) As observed earlier, the suit filed in the year 1986 is for a right of passage between two portions of the same property dragged for a period of 21 years. In spite of long delay, if acceptable material/materials placed before the court show that the delay was beyond their control or diligence, it would be possible for the court to consider the same by compensating the other side by awarding cost. As pointed out earlier, when she gave evidence as D.W.1, there was no whisper about the written document/partition between the parties. On the other hand, she asserted that partition was oral. Now by filing the said application, she wants to retract what she pleaded in the written statement, undoubtedly it would deprive the claim of the plaintiff. We are also satisfied that she failed to substantiate inordinate delay in filing the application that too after closing of evidence and arguments. All these aspects have been considered by the High Court. We do not find any ground for interference in the order of the High Court, on the other hand, we are in entire agreement with the same." 14. On perusal of the aforesaid judgments, it is well established that the Hon'ble Supreme Court by considering the word "due diligence" has held that the Court while allowing the amendment, should have considered that why the amendment is required to be made and there should be fullfledged consideration in allowing the amendment application in regard to word "due diligence". 15. On perusal of the aforesaid judgments, it is well established that the Hon'ble Supreme Court by considering the word "due diligence" has held that the Court while allowing the amendment, should have considered that why the amendment is required to be made and there should be fullfledged consideration in allowing the amendment application in regard to word "due diligence". 15. On perusal of the impugned order, it is evident that the proviso of Order 6 Rule 17 CPC has not been taken in to consideration. The only recital has been made that in the light of the judgment of 2018 Allahabad ACJ 2205 in the case of Smt. Pushplata Saxena there shall be no change in the plaint and has accepted the amendment application and allowed the same. 16. In the opinion of this Court, the Additional District Judge while passing the impugned order has ignored the proviso of Order 6 Rule 17 CPC, therefore, the same is not sustainable in law. 17. In regard to the delay occasioned in seeking amendment in the plaint, learned counsel for the petitioners placed reliance upon the following judgments: (1) Shanti Devi and other Vs. Gomit Devi and others, 2013 121 RD 203 . "2. The learned counsel for the petitioner submits that the respondent had taken a plea to condone the delay in filing the revision that he acted upon on the advice of the counsel which is liable to be excused, whereas it is not in the ordinary course of law to provide any such excuse as has been held by this Court in the case of Devi Prasad Vs. The State of U.P. and others, 1983 1 LCD 385. In this case this Court has expressed the following opinion:- "It is true that bonafide advice given by a counsel after due care and attention may constitute sufficient cause for condonation of delay if acted upon by a party in good faith but it is not the law that the delay should invariably be condoned simply because it is asserted that it was caused on account of some wrong legal advice given by a counsel. In Municipal Board, Lucknow V. Kali Krishna Narain and others, 1944 AIR(Oudh) 135) (D.B.) an applicant sought condonation of delay on the basis of the advice given by a counsel. In Municipal Board, Lucknow V. Kali Krishna Narain and others, 1944 AIR(Oudh) 135) (D.B.) an applicant sought condonation of delay on the basis of the advice given by a counsel. It was held by a Division Bench that it is not sufficient for the applicant to show that he acted on the advice of a counsel but the court must be further satisfied that the advice was given with due care and attention. In that case the delay in filing an application for leave to appeal to His Majesty in Council was sought to be condoned on the ground of a misapprehension in the mind of the council that a period of six months was provided, which misapprehension was due to the counsel's failure to notice that the editions of Mulla's Civil Procedure Code and Limitation Act which he consulted were old ones. It was held that the fact that the counsel consulted the old editions of the Code of Civil Procedure and the Limitation Act published presumably prior to 1920, established beyond doubt utter negligence and carelessness on the part of the counsel who had been appearing in the Chief Court for many years and the negligence of counsel in the circumstances of the case did not entitle the applicant to urge that he was prevented by any sufficient cause from filing the application for leave within time. In Sarmuk Singh V. Chanan Singh, 1960 AIR (P&H) 512) delay was sought to be condoned on the ground of wrong advice of the counsel in relation to the provisions of S.39 of the Punjab Courts Act. A Division Bench of that court held (at p.513):- "Had the learned counsel cared to look up this section there could have been no reasonable doubt that the appeal could, on no conceivable ground, be competent in the Court of learned District Judge. This was not an error liable to be committed by a reasonably prudent lawyer exercising due diligence and caution. Indeed a mistake due to negligence or misconduct or want of reasonable skill can by no stretch be considered to fall within the definition of "good faith" as contained in Sec.2(7) of the Limitation Act." (2) Pramod Urf Raju and others Vs. State of U.P. and others, 2016 114 ALR 669. "9. Indeed a mistake due to negligence or misconduct or want of reasonable skill can by no stretch be considered to fall within the definition of "good faith" as contained in Sec.2(7) of the Limitation Act." (2) Pramod Urf Raju and others Vs. State of U.P. and others, 2016 114 ALR 669. "9. The learned counsel for the appellant had contended that although the documentary evidences in question were within the knowledge of appellant but it was due to incorrect legal advice the same could not be filed in the lower courts. The legal advice given by a counsel to a litigant is a privileged communication. Section 129 of Indian Evidence Act deals with the ''Confidential communications with legal advisers'. It provides that "No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser". No affidavit or evidence of fact is there to prove that any such advice was in fact given to appellant. Apart from it the evidence in appeal can be admitted only on the three grounds mentioned in Rule-27 of Order 41 CPC. This provision does not contain the ground of erroneous legal advice given by a counsel to a litigant. Therefore evidence cannot be admitted in appeal on ground that earlier before in lower court appeal the evidence could not be adduced because of wrong legal advice. " 18. On its perusal, it is evident that the suit in the present case was filed in the year 1998 and was decided vide judgment and decree dated 31.07.2017 and almost 22 years have passed in approaching the appellate Court seeking amendment in the plaint by placing pedigree of the family on the ground that due to wrong advice of the counsel, the same could not be placed in the plaint. 19. In the aforesaid two judgments, there was 18 year's delay and the explanation furnished in regard to the delay occasioned in seeking amendment was not accepted and was rejected by the Hon'ble Supreme Court as well as by this Court by holding that if something could not be brought on the plaint on the wrong advise of the counsel, delay occasioned can not be condoned on this ground. In the present case, similar position is involved, therefore, the judgments referred herein above are fully applicable in the present facts and circumstances of the case. In the present case, similar position is involved, therefore, the judgments referred herein above are fully applicable in the present facts and circumstances of the case. 20. In the light of the judgments referred herein above and in view of the submission advanced by learned counsel for the parties and on perusal of the impugned order, in the opinion of this Court, the submissions advanced by learned counsel for respondent Nos.1 and 2 do not attract to this Court that this ground was not taken in the appeal. This is a pure question of law and cannot be ignored at this stage while examining the validity of an order passed. 21. In view of the observation made above, the impugned order dated 03.05.2019 passed by the Additional District Magistrate, FTC IInd, Balrampur cannot be sustained. Accordingly, the same is hereby set aside. 22. The writ petition succeeds and is allowed. However, it is directed to expedite the hearing of the appeal and to decide the same within a period of one year from the date of production of a certified copy of this order without granting further adjournments.