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2019 DIGILAW 608 (MP)

Bhupendra Singh v. Prakash Chand

2019-08-27

NANDITA DUBEY

body2019
ORDER 1. With the consent of learned counsel for the parties, heard finally. 2. This petition is directed against the order dated 22.1.2018, whereby the application of plaintiff preferred under Order 6 rule 17 of the CPC was dismissed by the trial Court. 3. Assailing this order, Shri Sanjay Sarwate, learned counsel for the petitioner submits that the trial is at the initial stage, even the issues are yet to be framed, in that event while filing the amendment application, the plaintiff is not required to show due diligence. He has placed reliance on 2015 (III) MPWN 44 Shantilal and another v. Ramesh Chandra and another. 4. On the other hand, Shri Rohan Harne, learned counsel for the respondent submits that the plaintiff is required to show due diligence while filing an application under Order 6 rule 17 of the CPC It is argued that when the facts mentioned in the application were already in the knowledge of plaintiff, he is required to show as to why such fact/document could not be brought on record earlier. It is further argued that the proposed amendment also changes the nature of the suit. Reliance is placed on (2006) 12 SCC 1 Ajendraprasadji N. Pandey and another v. Swami Keshavprakeshdasji N. and others, wherein the Supreme Court has held thus : "55. We have carefully perused the pleadings and grounds which are raised in the amendment application preferred by the appellants at Ex. 95. No facts are pleaded nor any grounds are raised in the amendment application to even remotely contend that despite exercise of due diligence these matters could not be raised by the appellants. Under these circumstances, the case is covered by proviso to rule 17 of Order 6 and, therefore, the relief deserves to be denied. The grant of amendment at this belated stage when deposition and evidence of three witnesses is already over as well as the documentary evidence is already tendered, coupled with the fact that the appellants' application at Exh. 64 praying for recasting of the issues having been denied and the said order never having been challenged by the appellants, the grant of the present amendment as sought for at this stage of the proceedings would cause serious prejudice to the contesting respondents original plaintiffs and hence it is in the interest of justice that the amendment sought for be denied and the petition be dismissed. 5. I have heard the learned counsel for the parties at length and perused the record. 6. It is an admitted fact that trial is at the initial stage as the issues are yet to be framed. The impugned order shows that the application of the petitioner was dismissed only on the ground that he has not shown due diligence. 7. A perusal of the application under Order 6 rule 17 of the CPC reveals that the petitioner has mentioned the fact that he received the documents during the cleaning at the Diwali time and has thereafter filed this application. It is also seen from the plaint as well as this application under Order 6 rule 17 of the CPC that the proposed amendment is in the nature of clarification, as the plaintiff had already mentioned these facts in his pleadings. 8. Parameters for considering the amendment application prior to and subsequent to the commencement of trial are different. Pre-trial amendments may be dealt with leniently, whereas the post trial amendments are covered by the proviso to Order 6 rule 17 of the C.P.C. 9. The Supreme Court in the case of (2012) 11 SCC 341 (Abdul Rehman v. Mohd. Ruldu) has opined that : "The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial". 10. In the present case, the trial is yet to commence, therefore, the proviso to Order 6 rule 17 of the CPC will not be applicable. In the fact situation, the case law relied upon by the learned counsel for the respondent is not applicable to the present case. 11. For the forgoing reasons and in view of the aforestated legal position, I am of the opinion that this petition deserves to be allowed. The order dated 22.1.2018 passed by the trial Court is set aside.