Heard Sri Manish Kumar Nigam, learned counsel for the petitioner and Sri Awadhesh, learned counsel for the respondents.
The petitioner plaintiff has filed this writ petition challenging the orders of the trial court and the revisional court rejecting his application under Order VI Rule 17 for amendment of the plaint.
The petitioner plaintiff filed a suit bearing O.S. No.685 of 2004 seeking permanent injunction against the respondents defendants from interfering in his peaceful possession on the sahan and passage as demarcated in the map annexed with the plaint and for not making any construction therein. The Court Amin was directed to submit survey report and he submitted the said report on 17.07.2004. On 11.08.2004, a temporary injunction was granted directing the parties to maintain status quo. Issues were framed in the suit on 21.05.2008. According to the petitioner plaintiff, the respondents defendants raised certain constructions after filing of the suit but prior to submission of the report of the court Amin and thereafter again in October, 2009. The Court Amin's report was affirmed subject to evidence on 07.12.2009. After the submission of the affidavit and examination in chief of P.W.-1 under order XVIII Rule 4, his cross-examination took place on 02.09.2012. Thereafter, the affidavit under Order XVIII Rule 4 of P.W.-1 was also filed. On 21.02.2012, an application for amendment of the plaint was filed by the petitioner plaintiff alleging about the aforesaid constructions having been raised by the respondents defendants. The prayer clause was sought to be amended by including a prayer for mandatory injunction directing the defendants to demolish the construction raised by them and for handing over possession to the plaintiff etc. A prayer for deleting the entire map annexed with the plaint and to substitute it by another map, a copy of which was annexed with the amendment application, was also made apart from other amendments sought. The trial court rejected the application for amendment vide 24.05.2013 firstly on the ground that the same had been filed only to delay the suit proceedings and that it was barred by limitation. The trial court took note of the fact that certain fresh constructions on the land in question were mentioned in the report of the court Amin submitted in the year 2004 itself but the plaintiff did not deem it necessary to amend the plaint. The alleged subsequent construction is also stated to have taken place in October, 2009 despite the operation of the status quo order but the plaintiff neither initiated any proceedings under Order XXXIX Rule 2A nor filed any application to amend the plaint. He waited for three years before moving the application dated 21.02.2012. For the aforesaid reasons, the trial court rejected the application. Being aggrieved, petitioner plaintiff filed a revision being Civil Revision No.118 of 2013. The said revision has also been dismissed on 15.05.2014. The revisional court has taken into consideration the provision contained in the proviso to Order VI Rule 17 as inserted w.e.f. 01.07.2002 and has held that the plaintiff has failed to establish that the prayer for amendment in question could not be raised before the commencement of the trial, in spite of due diligence on his part. The trial court has held that plaintiff did not exercise due diligence and in spite of being aware of the relevant facts, chose to file an application for amendment only on 21.02.2012, i.e. eight years after filing of the suit. The revisional court has also held that the scope of revision is very limited and in the facts and circumstances of the case, the order of the trial court dated 24.05.2013 rejecting the amendment application cannot be said to be erroneous.
The learned counsel for the petitioner contended that a liberal approach in allowing amendment application has been followed by the courts throughout, therefore, the impugned orders are not sustainable. The amendment in question does not change the nature of the case. The limitation for filing of suit for possession is 12 years, therefore, the same has also not expired and as such, if a suit was maintainable, then there was no reason as to why ongoing suit itself not be allowed to be amended. The respondents defendants were in possession and therefore, no prejudice would be caused to them. The impugned orders are not sustainable in view of pronouncements of the Supreme Court reported in Sampath Kumar Vs. Ayyakannu and another, 2002 (7) SCC 559, Rajesh Kumar Aggarwal and others Vs. K.K. Modi, 2006 All. C.J. 989, 2002 (2) SCC 472, 2004 (6) SCC 415 and 2006 (3) ACJ 1951.
Learned counsel for the respondents, on the other hand, submitted that the suit was filed on 01.07.2004, the construction in question existed prior to filing of the suit as would be evident from the report of the court Amin submitted on 17.07.2004, no construction was made by the defendants after filing of the suit and passing of the injunction order on 11.08.2004, that is why no application under Order XXXIX Rule 2A was filed by the plaintiff. The respondents have filed a supplementary affidavit in this writ petition in pursuance of an order dated 21.07.2014 categorically stating that no construction has been raised by them after grant of injunction on 11.08.2004, and that the amendment application was filed malafide with the intention to linger on the proceedings, which had reached the state where P.W.-1 and P.W.-2 had been examined. The application for amendment was filed on baseless and concocted allegations. The Commissioner's report dated 17.07.2004 was affirmed subject to evidence on 07.12.2009 but till then no objection was raised by the plaintiff. Even thereafter, he waited for three years before filing the amendment application in the year 2012. No documentary evidence has been filed to prove the alleged construction in the year 2009. Learned counsel for the respondents relied upon the judgment of this court dated 01.03.2011 passed in Civil Misc. Writ Petition No.68363 of 2010 and the judgment dated 07.03.2011 passed in Civil Writ Petition No.52123 of 2010 in support of his contentions, that malafide amendment application should not be entertained.
In rejoinder, the learned counsel for the petitioner submitted that no advantage could be gained by the petitioner by filing a belated amendment as the respondents are admittedly in possession. Substantial relief could not be granted to the petitioner plaintiff unless and until, the relief for possession and demolition of the construction was allowed to be incorporated along with other amendments sought. The amendments were necessary for adjudication of the controversy.
The provisions of order VI Rule 17, C.P.C. as amended w.e.f. 01.07.2002 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. "
The Supreme Court in the case of Salem Advocate Bar Association vs Union Of India, 2005 (6) SCC 344 while considering the provisions of Order VI Rule 17, C.P.C. held in para-26 as under:
"Order VI 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 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."
The Supreme Court in the case of Rajkumar Gurawara (Dead) Thr. Lrs vs M/S. S.K.Sarwagi & Co. Pvt. Ltd. reported in 2008 (14) SCC 364 while considering the provisions of Order VI Rule 17, C.P.C. as hereinabove observed as under:
"12. In order to consider whether the appellant/plaintiff has made out a case for amendment of his plaint, it is useful to refer Order VI Rule 17 CPC which reads 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."
The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this rule is subject to proviso appended therein. The said rule with proviso again substituted by Act 22 of 2002 with effect from 01.07.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings are able to satisfy the court that in spite of due diligence they could not raise the issue before the commencement of trial and the court is satisfied with their explanation, amendment can be allowed even after commencement of the trial.
13. To put it clear, Order VI Rule 17 C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso.
17. We have already explained the implication of proviso to Rule 17. Though even after commencement of the trial, parties to the proceeding are entitled to seek amendment, in the light of the factual details such as clear information in the reply notice prior to the filing of the suit and specific plea in the written statement of D-1 which contained details of government orders leasing out the suit property in favour of D-2, the action of the plaintiff at the stage of argument can not be permitted. Admittedly, the plaintiff failed to adhere to the said recourse at the appropriate time."
The Apex Court upheld the judgments of the High Court and the lower courts rejecting the application for amendment on the ground that the plaintiff failed to exercise due diligence and as such the conditions prescribed in the proviso to Order VI Rule 17 were not specified.
The Supreme Court again had the occasion to consider the aforesaid provision in the case of J.Samuel & Ors vs Gattu Mhesh & Ors, 2012 (3) SCC 300 has observed as under:
"16.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. 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 (sic itself) that there is a reasonable cause for allowing the amendment, normally the court has to reject such request.
17.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.
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." (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 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.
23.Though the counsel for the appellants have cited many decisions, on perusal, we are of the view that some of those cases have been decided prior to the insertion of Order VI Rule 17 with proviso or on the peculiar facts of that case. This Court in various decisions upheld the power that in deserving cases, the Court can allow delayed amendment by compensating the other side by awarding costs. The entire object of the amendment to Order VI Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other's case. It also helps checking the delays in filing the applications. [vide Aniglase Yohannan vs. Ramlatha and Others, (2005) 7 SCC 534, Ajendraprasadji N. Pandey vs. Swami Keshavprakeshdasji N. (2006) 12 SCC 1, Chander Kanta Bansal vs. Rajinder Singh Anand, (2008) 5 SCC 117, Rajkumar Gurawara vs. S.K.Sarwagi and Co. (P.) Limited and Another, (2008) 14 SCC 364, Vidyabai and Others vs. Padmalatha and Another, (2009) 2 SCC 409 and Man Kaur (dead) By LRS vs. Hartar Singh Sangha, (2010) 10 SCC 512."
In this case also, the Supreme Court upheld the judgment of the High Court and the trial court rejecting the application for amendment on the ground that the conditions mentioned in the proviso to Order VI Rule 17, i.e. due diligence, were not satisfied.
In the instant case, admittedly the amendment sought was at the post trial stage, therefore, it was incumbent upon the petitioner plaintiff to establish that the said pleas could not have been raised before the commencement of trial court in spite of due diligence on his part. The application for amendment does not disclose any such averment nor any effort was made in this regard during the course of arguments either before the courts below or before this court. The suit was filed on 01.07.2004, the Commissioner's report was submitted on 17.07.2004, which referred to certain fresh constructions upto the plinth area, in spite of it, no effort was made by the plaintiff to amend the plaint. A status quo order was passed on 11.08.2004. If any construction was raised in October, 2009, the plaintiff would have initiated proceedings under order XXXIX Rule 2A on the ground of violation of the status quo order, which was not done. Besides this, even thereafter, the plaintiff allowed three years to pass and the stage of evidence to reach wherein the P.W.-2 submitted his affidavit by way of examination in chief under Order 18 Rule 4, only thereafter the petitioner filed the application for amendment, on 21.02.2012. There is nothing in the amendment application to show the satisfaction of the condition mentioned in the proviso to Order VI Rule 17. The courts below have rightly rejected the application for amendment filed at such a belated stage. The learned courts below are also justified in observing that the said application appears to have been filed only to delay the proceedings. Tested on the anvil of the pronouncements of the Supreme Court referred hereinabove, I do not find any error in the impugned orders. There is a distinction between pre-trial and post-trial amendments as held by the Supreme Court. The proviso to Order VI Rule XVII has been added to balance the interest of the parties in pursuit of doing justice. The words 'due diligence' mentioned in the proviso cannot be ignored or treated lightly. In the case of J. Samual (supra), the Supreme Court has even considered the authorities where it has been held that even belated amendment can be allowed by compensating/ awarding costs, yet, it rejected the contentions in view of the proviso to Order VI Rule 17 referred above.
In view of the above discussion, I do not find any error in the impugned orders, the writ petition is accordingly dismissed.
Order Date :- 09.09.2014 NLY