Phool Singh vs State of MP and another

This petition filed under Article 227 of the Constitution of India takes exception to the order dated 17.04.2017, whereby the application for amendment filed under Order 6 Rule 17 CPC on 27.01.2017 was rejected by the Court below. The Court below rejected the said application by holding that on 09.07.2013 issues have been framed. Two witnesses of plaintiff have filed their affidavits under Order 18 Rule 4 CPC on 24.02.2014. Since trial had commenced before filing the application for amendment and no "due diligence" has been shown, the said application cannot be entertained.

Mr. Soni, learned counsel for the petitioner did not dispute the finding that trial had commenced before filing the application for amendment and assailed it on the ground that objection raised in the amendment application is purely legal in nature and it was not objected/opposed by the other side. Such amendment application have been allowed by imposing reasonable cost. Reliance is placed on 2009 (14) SCC 38 [ Sushil Kumar Jain vs. Manoj Kumar & another ] and order of this Court passed in W.P. No. 2923/ 2014 [Bhaguta & another vs. Ghapua & others ].

Mr. Saxena, learned counsel for the respondent No.1 opposed the said contention and submits that in absence of showing "due diligence" the amendment application was rightly disallowed. If objection of other side is purely legal in nature, they can very well raise the said objection during the oral arguments at appropriate stage before the Court below. He supported the impugned order.

No other point has been pressed by the learned counsel for the parties.

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

The Apex Court in (2009) 2 SCC 409, [Vidya Bai and others vs Padmalatha and another] held that the effect of insertion of proviso to Order 6 Rule 17 CPC is that applications for amendment which are filed after commencement of trial, must show/establish of "due diligence" which is a jurisdictional fact. Unless the said jurisdictional effect is established, Court have no jurisdiction to entertain the amendment application. In 2012 (11) SCC 341 ( Abdul Rehman vs Mohd. Ruldu ), the Apex Court held as under:

"10. 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:- 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. 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)

A plain reading of this judgment makes it crystal clear that an amendment application filed before commencement of trial and one which is filed after commencement of trial are required to be dealt with by applying different parameters. The amendment application filed before commencement of trial must be dealt with linently, whereas the amendment application filed after commencement of trial must show "due diligence".

This Court in 2014 (2) MPLJ 464 [Pratap & others vs. Ganeshram & others] & in 2014 (4) MPLJ 143 [ Manoj Jain vs. Suman Goyal ] dealt with the point which shows as to when trial commences. If the present case is tested on the anvil of principle laid down in the aforesaid cases, it will be crystal clear that trial had begun in the instant case before the amendment application was filed. This fact has not been disputed by the learned counsel for the petitioner. In Sushil Kumar Jain (Supra) the amendment application was filed before commencement of trial which is evident from para 19 of the judgment. Hence, the said judgment is of no assistance to the present petitioner. In the case of Bhagunta (Supra) this Court has not considered the judgment of Abdul Rehman (Supra) and effect of proviso to Order 6 Rule 17 CPC.

The interlocutory order passed by the Court below can be interfered with if it suffers from any procedural impropriety, palpable perversity or any jurisdictional error. No such points are available in the present case. Another view is possible cannot be a ground for interference. In absence of any ingredient on which interference can be made, interference is declined. However, this order will not come in the way of petitioner in raising legal objection at the time of final hearing of the matter.

With aforesaid observation, petition is dismissed.