Prabhakar Joshi vs Raj Kumar and Others

Hon''ble Shri Justice Sujoy Paul

By invoking the jurisdiction of this Court under Article 227 of the Constitution of India, the petitioner/defendant has challenged the order dated 6.9.2012 whereby his application under Order 6 Rule 17 C.P.C. for amendment is rejected by the Court below. Shri K.B. Chaturvedi, learned senior counsel assisted by Shri Yogesh Chaturvedi submits that the application for amendment (Annexure P-4) was filed on the basis of subsequent event which took place on 15.8.2012. By placing reliance on the averments of amendment application, it is stated that the plaintiff started his business in the west side of the shop w.e.f. 15.8.2012 and plaintiff''s son has started his business at Gwalior which shows that there is no bonafide need of shop to the plaintiff. By emphasizing on the date i.e., 15.8.2012, learned counsel submits that immediately thereafter the application Annexure P-4 is filed on 6.9.2012 and, therefore, defendant has filed it with ''due diligence''.

Criticizing the order whereby the said application is rejected for want of ''due diligence'' by the Court below, learned counsel submits that the finding of the Court below to that extent is bad in law. He relied on Usha Balashaheb Swami and Others Vs. Kiran Appaso Swami and Others, to submit that the amendment needs to be dealt with leniently, more-so, when it is amendment prayed for in written statement.

Per contra, Shri Harish Dixit, learned counsel for respondent No. 1, supported the order passed by the Court below.

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

A bare perusal of the impugned order shows that the amendment application is rejected on two grounds:-

Firstly, it is rejected on the ground of lack of ''due diligence'' and secondly on the ground of the conduct of the present petitioner. So far the first ground is concerned, I find substance in the argument of learned senior counsel. Since the amendment application is based on subsequent event which is subsequent to filing of written statement and the amendment application was filed with quite promptitude after 15.8.2012, it cannot be said that amendment application suffers from lack of ''due diligence''. To this extent, the impugned order cannot be upheld. However, the Court below has taken into account the conduct of the petitioner. The Court below has assigned the following reasons in the impugned order:-

A bare perusal of the aforesaid finding of the Court below shows that the petitioner preferred a series of miscellaneous applications on every date when matter was fixed for evidence. He filed miscellaneous applications under Order 14 Rule 5 C.P.C., under Order 8 Rule 1 C.P.C., under Order 13 Rule 10 C.P.C. and then under Order 6 Rule 17 C.P.C. After deciding those miscellaneous applications when the matter was again fixed for evidence, the petitioner again filed yet another amendment application under Order 6 Rule 17 C.P.C. The Court below on the basis of aforesaid conduct of the petitioner opined that the petitioner is willfully and deliberately trying to delay the proceedings. Therefore, his conduct cannot be said to be bonafide or in accordance with law.

In the considered opinion of this Court, this is a relevant consideration and conduct of party is relevant even for deciding the amendment application. This view is recently taken by the Principal Seat in the case reported in 2012(2) M.P.H.T. 317 (Pushpa Arora Vs. Dr. (Smt.) Anita Arora and others). The relevant portion of the judgment reads as under:-

Whether the application has been made bonafide or with malafide intention to protract the proceedings.

So far the judgment of Supreme Court cited by Shri Chaturvedi is concerned, the legal principles laid down cannot be doubted. However, while examining the case of a party in this regard, his conduct is required to be seen. If amendment is bonafide and it does not cause prejudice to the other side and if it is necessary for determining the real question involved in the matter, amendment can very well be allowed. But in the present case, the Court below has rightly held that the modus operandi of the petitioner is clear which shows that he wants to delay the proceedings. The amendment application cannot be permitted to become a tool in the hands of such a litigant to cause delay in the proceedings. Therefore, the said judgment of the Supreme Court has no application in the peculiar facts and circumstances of this case.

On the basis of aforesaid analysis, the petitioner cannot succeed on the second ground/reason shown by the Court below, i.e., the conduct of the petitioner in filing the application for amendment to delay the proceedings. The scope of interference under Article 227 of the Constitution is well defined. In cases of jurisdictional error, palpable perversity or manifest procedural irregularity, the Court can interfere. This Court is not obliged to examine the matter as an appellate Court. Another view is possible is not a ground to interfere as held by the Supreme Court in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, . The basic purpose is to keep the Courts below within the bounds of their authority and not to interfere as a routine on a drop of hat. The Court below, in the opinion of this Court so far second reason is concerned, has given plausible reasons which cannot be said to be perverse or impermissible in nature. Consequently, I find no reason to interfere under Article 227 of the Constitution of India. In the result, the impugned order to the extent petitioner''s application for amendment is disallowed on the ground of his conduct, is upheld. Resultantly, petition is dismissed. No cost.