Fateh Singh vs Rambaran Lal and Others

Sujoy Paul, J.—In this petition filed under Article 227 of the Constitution, the challenge is made to the order dated 05.11.2012 passed in Civil Suit No. 15/12A passed by Ist Civil Judge Class I, Morena. In a suit for permanent injunction filed in the year 2005 by the respondent/plaintiff, written statement was filed by the petitioner/defendant. Issues were framed and the plaintiff completed his evidence Thereafter matter was fixed for defendant''s evidence. At this stage on 21.10.2011 an application (Annexure P/5) under Order 6 Rule 17 C.P.C. is filed by the respondent/plaintiff. Same was opposed by the petitioner by filing detailed reply. The Court below allowed the said amendment application by imposing Rs. 200/- cost on the plaintiff. Assailing this order, it is contended that the amendment application is filed after almost six years from the date of institution of this suit. No reasons are assigned in the amendment application for filing it belatedly. In absence of showing " due diligence", the Court below has no jurisdiction to allow amendment application. In addition, it is contended that amendment is not based on subsequent events. If amendment is allowed, it will cause prejudice to the other side.

Shri N.K. Gupta, learned counsel for the respondent/plaintiff supported the order and submits that there is no legal error which warrants interference by this Court under Article 227 of the Constitution. It is submitted that amendment is clarificatory in nature which only strengthens the existing pleadings. Thus, Court below has not erred in allowing the said application.

I have heard learned counsel for the parties and perused the record.

A bare perusal of the amendment application makes it clear that petitioner has not chosen to assign single reason as to why said amendment application was not filed earlier. Putting it differently, petitioner has not shown and established "due diligence" in filing the said application. The Apex Court in Vidyabai and Others Vs. Padmalatha and Another, has taken a view that after amendment to proviso to Order 6 Rule 17 C.P.C., no application for amendment should be allowed after trial has commended, unless the court comes to the conclusion that inspite of due diligence the party could not have raise the averments before the commencement of trial. In para 19 of the judgment in Vidyabai (supra), Apex Court opined that the proviso appended to Order 6 Rule 17 of the Code restricts the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court''s jurisdiction, in a case of this nature is limited. Unless the jurisdictional fact is established, the Court below will have no jurisdiction at all to allow the amendment of the plaint. Same view is taken by the Supreme Court in J. Samuel and Others Vs. Gattu Mahesh and Others, . In Abdul Rehman and Another Vs. Mohd. Ruldu and Others, the Apex Court has not taken any different view.

In the light of aforesaid litmus test laid down by the Supreme Court, it is clear like noon day that party seeking amendment must satisfy the Court below that amendment could not be filed before commencement of the trial because of justiciable reason which shows his/her "due diligence. In the present case, no reasons are assigned in the amendment application to satisfy the requirement of " due diligence". Thus jurisdiction test is not satisfied by the respondent/plaintiff before the trial Court. In absence thereof, the trial Court has committed the jurisdictional error in allowing the amendment application. The order of the trial Court runs contrary to law laid down by the Apex Court in Vidyabai (supra). Under Article 227 of the Constitution, interference can be made if order impugned is without jurisdiction, suffers from any manifest procedural impropriety or irregularity or palpable perversity. In the present case, the Court below has passed an order which attracts those reasons on which interference can be made. Resultantly, impugned order Annexure P/1, allowing the amendment application, is set aside. The amendment application of the respondent/defendant under Order 6 Rule 17 C.P.C. (Annexure P/5) is rejected. The Court below is directed to proceed from that stage in accordance with law. Petition is allowed. No Costs.