Prechand Jain vs Kailash

Sanjay Yadav, J.—Heard on admission.

The plaintiffs vide present petition under Article 227 of the Constitution of India, challenges the order dated 9.4.2015; whereby, an application preferred by the petitioners under Order 6 Rule 17, Code of Civil Procedure, 1908 for amendment in the plaint has been declined.

Pertinently, the impugned order also decides one more application, viz., application under Order 7 Rule 14(3) read with Order 18 Rule 17, CPC; however, petitioner has confined his challenge to the order rejecting the application under Order 6 Rule 17.

Suit is for declaration of title in respect of land bearing Khasra No. 991/8 admeasuring 0.300 Are, situated at village Prithvipur. That, after the conclusion of the Trial when the matter was posted for hearing, petitioner filed an application under Order 6 Rule 17 CPC seeking incorporation of various facts on the ground that these facts could not be incorporated at the time of filing of suit.

Trial Court taking into consideration that no bona fide explanation has been tendered by the petitioner in respect of non-incorporating the facts which at the time of filing of the suit were existing, declined to grant leave to the petitioner to amend the plaint.

After hearing learned counsel for the petitioner at length, this Court is of the considered opinion that the Trial Court is justified in rejecting the application.

Proviso to Rule 17 of Order 6 stipulates:

"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."

True it is that at any stage an amendment can be sought to bring on record and elucidate the facts as would help the Courts to arrive at a just decision, and the Courts generally should be liberal in considering such applications. The parameter however, changes when an amendment in pleading is sought after the trial has commenced. In that case the Court dwelling upon such application has to satisfy itself that despite of exercising of due diligence the party which seeks an amendment could not bring the facts on record at the time of filing the suit or written statement, as the case may be.

In Vidyabai and Others Vs. Padmalatha and Another, AIR 2009 SC 1433 : (2009) 1 JT 302 : (2009) 154 PLR 490 : (2009) 1 SCALE 202 : (2009) 2 SCC 409 : (2009) 12 Vat Reporter 2524 : (2009) AIRSCW 899 : (2009) 1 Supreme 238 it has been held:

"19. ...However, proviso appended to Order VI, 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. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."

Recently in In J. Samuel and Others Vs. Gattu Mahesh and Others, (2012) 2 CTC 94 : (2012) 1 JT 169 : (2012) 167 PLR 93 : (2012) 1 RCR(Civil) 903 : (2012) 1 SCALE 330 : (2012) 2 SCC 300 : (2012) 1 UJ 588 : (2012) AIRSCW 1035 : (2012) 1 Supreme 568 : it is observed by their Lordships:

"18. ...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."

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."

The impugned order when adjudged on the principle of law laid down in M/s. Modi Spinning and Weaving Mills Co. Ltd. (supra), Vidya Bai (supra) and J. Sammuel (Supra) does not suffer the jurisdictional error as would warrant an interference.

There being no substance, the petition fails and is dismissed.