Ajuddi Prasad vs Gajari Bai & Another

The challenge in this petition filed under Article 227 of the Constitution is made to the order dated 13-02-2017 (Annexure P/1) passed in Civil

Suit No.37-A/13 whereby the application preferred under Order 6 Rule 17 of the CPC by the defendant is allowed by the Court below.

The main ground of attack to this order is that the amendment application was filed after commencement of trial. Earlier, an application of similar

nature was filed on 17-06-2016, which was withdrawn as not pressed on 29-09-2016. The second application was preferred on the same ground

which does not contain any reason for explaining the delay in filing the amendment application. It is urged that the respondent has not shown ""due

diligence"" while belatedly filing the amendment application.

Per contra, Shri Dinesh Upadhyay, learned counsel for the respondents supported the impugned order. Shri Upadhyay contended that by way

of amendment application, the defendant only wanted to produce certain judgments which will not change the nature of the case.

No other point is pressed by the parties.

I have heard the parties at length and perused the record.

The court below, in my opinion, has rightly held that the second application for amendment is not hit by principle of res judicata. If the second

application for amendment is examined in juxtaposition to the earlier amendment application, it will be clear that both the applications are almost

similar. This is trite law that an amendment application filed before commencement of trial and an application of similar nature filed after

commencement of trial are required to be examined by applying different parameters. The amendment prayed for before commencement of trial

needs to be dealt with leniently whereas post trial amendment must show ""due diligence"". In the present case, the alleged subsequent event is of

17-06- 2014 and orders of Judicial Magistrate dated 26-05-2015 and of Special Judge dated 05-04-2016. The instant amendment application

was filed on 05-01-2017. The amendment application is not filed with quite promptitude and with ""due diligence"". The expression ""due diligence

has a definite connotation. It requires due application of mind, awareness of the party relating to an incident/event, which may give him right to file

amendment application after commencement of trial. If a party awakes from his slumber after one or two years from the date of subsequent event

or a subsequent judgment, it cannot be said that such party has acted with ""due diligence"". This principle is laid down in the case of J. Sammuel &

others vs. Gattu Mahesh & others reported in (2012) 2 SCC 300.

At the cost of repetition, in In (2012) 11 SCC 341 (Abdul Rehman vs Mohd. Ruldu), the Apex Court held as under:-

""Before considering the factual details and the materials placed by the appellants praying for amendment of their plaint, it is useful to refer

Order VI Rule 17 which is as under:-

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.

It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceeding for the purpose of

determining the real question in controversy between them. 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.

(Emphasis supplied)

In the present case, the amendment application filed after commencement of trial was not filed with ""due diligence"" and in that case the Court has

erred in allowing the amendment application. Resultantly, order dated 13-02-2017 is quashed.

It is made clear that this order will not come in the way of the defendant in relying on the judgments of the Court.

With the aforesaid observations, this petition is disposed of. No cost.