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2023 DIGILAW 1676 (ALL)

Ramzani v. Toni Agarwal

2023-07-13

JAYANT BANERJI

body2023
JUDGMENT : 1. Heard Shri Divakar Rai Sharma, learned counsel for the defendant-petitioners and Shri G.K. Singh, learned Senior Advocate assisted by Shri Shekhar Gangal, learned counsel for the plaintiff-respondent no.1. 2. This petition has been filed by the defendants of Original Suit No. 155 of 2009 for setting aside the order dated 6.3.2023 passed by the Additional District Judge, Court No. 1, Aligarh in Civil Appeal No. 2 of 2020 (Toni Agarwal Vs. Ramzani and others). Further relief sought is to direct the concerned court to allow the application Paper No. 29 d under Order 6 Rule 17 read with Section 151 of C.P.C. for amending the written statement. 3. It stated that Original Suit No. 155 of 2009 was filed by the plaintiff-respondent seeking permanent prohibitory injunction against the defendant-petitioner as well as the defendant-respondent. It is stated that another suit bearing Original Suit No. 185 of 2009 was filed by the defendant-petitioners and the defendant-respondent against the plaintiff-respondents seeking cancellation of a sale deed. It is stated that both the aforesaid suits were clubbed together and adjudicated by the Civil Judge (Senior Division), Khair, Aligarh and decided by a common judgment and order dated 16.11.2019, whereafter a decree was made. It is stated that the suit of plaintiff-respondent being Original Suit No. 155 of 2009 was dismissed whereafter the plaintiff-respondent filed the aforesaid Civil Appeal No. 2 of 2020. During pendency of the appeal, the defendant-petitioners filed an application Paper No. 29 d seeking amendment in the written statement. By the impugned order dated 6.3.2023, the appellate court has rejected the application for amendment. 4. The contention of the learned counsel for the petitioner is that the amendments sought were necessary to adjudicate the real controversy between parties and it was due to a mistake that the amendments could neither be brought on record earlier, nor at the time of filing of the written statement. 5. Learned Senior Advocate appearing for the plaintiff-respondent has opposed the petition and has stated that the appellate court has recorded in the impugned order that the plaintiff-respondent had failed to demonstrate the aspect of due diligence, that is incorporated in the proviso to Order 6 Rule 17 of the C.P.C.. It is further contended that the amendments sought are not such that are material and necessary for purpose of adjudication of the case. 6. It is further contended that the amendments sought are not such that are material and necessary for purpose of adjudication of the case. 6. It is pertinent to quote Order 6 Rule 17 of the C.P.C. which is 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.” 7. The amendment application Paper No. 29 d has been enclosed as Annexure-5 to the petition in which the proposed amendments have been mentioned. The reasons for filing the amendment application have been stated to be, firstly, by mistake, and, secondly, since the defendants were ignorant of the law, they could not inform the advocate about those facts while filing the written statement. The amendments sought are as follows: 8. A perusal of the written statement that has been enclosed as Annexure-2 to this petition reveals that as far as the sale deed is concerned, the necessary averments regarding the sale deed dated 2.6.2009 has been made in paragraph no. 17 of the written statement. Further averments regarding mutation proceedings and the sale deed dated 2.6.2009 have been made, respectively, in paragraph no. 23 and 24 of the written statement. In paragraph no. 27, it has been mentioned that the defendant-petitioners were recorded tenure holders and no suit can for permanent injunction can be allowed against them. In the averments in paragraph no. 28, the bar of Section 331 of the U.P.Z.A. and L.R. Act has been mentioned. In paragraph 29 the objection regarding bar under Section 34, 38, and 41 of the Specific Relief Act has been raised. 9. As far as the paragraph nos. 28 v , 28 c and 28 l in Paper No. 29 d are concerned, it is noted that necessary averments already find place in the written statement. As far as paragraph no. 9. As far as the paragraph nos. 28 v , 28 c and 28 l in Paper No. 29 d are concerned, it is noted that necessary averments already find place in the written statement. As far as paragraph no. 28 n of Paper No. 29 d is concerned, the same is covered by paragraph 29 of the written statement. For allowing an application for amendment of the pleadings in terms of the proviso to Order 6 Rule 17 of C.P.C., the court has to come to a conclusion regarding due diligence on part of the party seeking amendment in the pleading as to whether the matter could not have been raised before the commencement of the trial. The petitioner has failed to demonstrate the same. The amendments sought that have been quoted above are also not such that could be said to be necessary for the purpose of determining the real question and controversy between the parties inasmuch as the averments already find mention in the written statement, albeit the expressions are different. 10. Therefore, it is evident that the amendments sought are not imperative for proper and effective adjudication of the case. Refusing the amendments would neither lead to injustice or lead to other litigations. The ‘mistake’ and ‘ignorance of law’ as pleaded in the amendment application are certainly not bonafide. The amendments of written statement sought were well within the knowledge of the petitioner before the commencement of the trial and the reasons ascribed for not raising the matter before commencement of trial, have been demonstrated by the respondents to be frivolous and false. 11. Learned counsel for the petitioners has argued that the amendments sought are not new pleadings but merely support the pleadings in the written statement and therefore, the aspect of ‘due diligence’ would not be applicable in the instant case. Qualifying the aspect of ‘due diligence’ appearing in the proviso to Order 6 Rule 17 to be applicable in the case of amendment by new pleadings and not in the case of amendment only to support pleadings on record, would be to read words into the provision where the provision itself is clear and unambiguous. The purpose of the amendment in Order 6 Rule 17 of the C.P.C. is to curtail delay and expedite hearing of cases and prevent frivolous applications which are filed to delay the trial. The purpose of the amendment in Order 6 Rule 17 of the C.P.C. is to curtail delay and expedite hearing of cases and prevent frivolous applications which are filed to delay the trial. The proviso has been added as an exception to balance the interests of the parties in pursuit of doing justice. 12. Whether a party has acted with due diligence or not would depend upon the facts and circumstances of each case. The proviso limits the scope of amendment to pleadings, but vests enough powers in courts to deal with the unforeseen situations. Diluting the purport and intention of the proviso in which the aspect of “due diligence” was brought, would lead to defeating the very purpose for which the provision was enacted. The courts would refrain from exercising discretion to grant permission to a party to amend his pleadings unless the limitation imposed by the proviso is overcome. 13. The Supreme Court in the case of Chander Kanta Bansal Vs. Rajinder Singh Anand, (2008) 5 SCC 117 observed as follows: “13. 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 other's 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. 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.” 14. Further in the case of J. Samuel Vs. Gattu Mahesh, (2012) 2 SCC 300 , it has been observed as follows: “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. 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. 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.” 15. In the judgment of Mohinder Kumar Mehra Vs. Roop Rani Mehra, (2018) 2 SCC 132 , the Supreme Court has observed as follows: “14. By Amendment Act 46 of 1999, with a view to shortage litigation and speed of the trial of the civil suits, Rule 17 of Order 6 was omitted, which provision was restored by Amendment Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to a considerable extent. By Amendment Act 46 of 1999, with a view to shortage litigation and speed of the trial of the civil suits, Rule 17 of Order 6 was omitted, which provision was restored by Amendment Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to a considerable extent. The object of newly inserted Rule 17 is to control filing of application for amending the pleading subsequent to commencement of trial. Not permitting amendment subsequent to commencement of the trial is with the object that when evidence is led on pleadings in a case, no new case be allowed to set up by amendments. The proviso, however, contains an exception by reserving right of the Court to grant amendment even after commencement of the trial, when it is shown that in spite of diligence, the said pleas could not be taken earlier. The object for adding proviso is to curtail delay and expedite adjudication of the cases. 15. This Court in Salem Advocate Bar Assn. (2) v. Union of India, (2005) 6 SCC 344 has noted the object of Rule 17 in para 26 which is to the following effect: (SCC pp. 365-66) “26. Order 6 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 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 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.” 16. The judgment on which much reliance has been placed by the learned counsel for the appellant is Rajesh Kumar Aggarwal v. K.K. Modi, (2006) 4 SCC 385 . This Court had occasion to consider and interpret Order 6 Rule 17 CPC in paras 15 and 16, in which following has been held: (SCC pp. 392-93) “15. The judgment on which much reliance has been placed by the learned counsel for the appellant is Rajesh Kumar Aggarwal v. K.K. Modi, (2006) 4 SCC 385 . This Court had occasion to consider and interpret Order 6 Rule 17 CPC in paras 15 and 16, in which following has been held: (SCC pp. 392-93) “15. The object of the Rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.” 17. Although Order 6 Rule 17 permits amendment in the pleadings “at any stage of the proceedings”, but a limitation has been engrafted by means of proviso to the effect that no application for amendment shall be allowed after the trial is commenced. Reserving the court's jurisdiction to order for permitting the party to amend pleading on being satisfied that in spite of due diligence the parties could not have raised the matter before the commencement of trial. In a suit when trial commences? Order 18 CPC deals with “hearing of the suit and examination of witnesses”. Issues are framed under Order 14. At the first hearing of the suit, the court after reading the plaint and written statement and after examination under Rule 1 of Order 14 is to frame issues. Order 15 deals with “disposal of the suit at the first hearing”, when it appears that the parties are not in issue of any question of law or a fact. After issues are framed and case is fixed for hearing and the party having right to begin is to produce his evidence, the trial of suit commences. 18. This Court in Vidyabai v. Padmalatha, (2009) 2 SCC 409 : (2009) 1 SCC (Civ) 563 held that filing of an affidavit in lieu of examination-in-chief of the witnesses amounts to commencement of proceedings. 18. This Court in Vidyabai v. Padmalatha, (2009) 2 SCC 409 : (2009) 1 SCC (Civ) 563 held that filing of an affidavit in lieu of examination-in-chief of the witnesses amounts to commencement of proceedings. In para 11 of the judgment, the following has been held: (SCC p. 413) “11. From the order passed by the learned trial Judge, it is evident that the respondents had not been able to fulfil 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. Filing of an affidavit in lieu of examination-in-chief of the witness, in our opinion, would amount to “commencement of proceeding”.” 16. Reliance has been placed by the learned counsel for the petitioner on a judgment of a Coordinate Bench of this Court in the case of Col. (Retd.) Harpal Singh Dhillon and others Vs. District Judge, Lucknow and others in Misc. Single No. 40 and 843 of 2013. However, given the facts and circumstances of the present case, the judgment has to be read in light of the mandate of the Supreme Court in the cases cited above. 17. Learned counsel for the petitioner, in support of his contention has also placed reliance on a judgment of the Supreme Court in the case of Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited and another, AIR 2022 Supreme Court 4256 : 2022 SCC OnLine SC 1128. A perusal of the judgment shows that the Supreme Court was considering the issue of amendment that arose out of a suit filed in 1986, that is to say, before the amendment in Order 6 Rule 17 of the C.P.C.. In that judgment, in view of the facts of that case, the Supreme Court was not considering the amendment brought about in Order 6 Rule 17 of the C.P.C.. 18. Under the circumstances, interference in the matter is declined and this petition is dismissed.