Prem Chandra vs Charat Kumar Bansal

Ram Surat Ram (Maurya), J.—Heard Sri Atul Dayal, for the petitioner.

This petition has been filed for setting aside the order of Additional District Judge dated 20.02.2016, dismissing amendment application of the petitioner for amending written statement under Order 6, Rule 17 C.P.C.

Charat Kumar Bansal (the respondent) filed a suit (registered as O.S. No. 15 of 2007) for specific performance of agreement to sell dated 04.11.2004, executed by Prem Chand (the petitioner). It has been stated in plaint that the petitioner was owner of a residential plot of an area 402.11 sq. meter, situated at mohalla Hazipur, Shamli, Delhi road, district Muzaffar Nagar. The petitioner was in need of Rs. 3,00,000/-. He approached the respondent and agreed to sell aforesaid plot for Rs. 3,72,000/-. The petitioner executed a registered agreement to sell dated 04.11.2004 after taking Rs. 3,00,000/- as earnest money. It was agreed between the parties that the respondent would get the sale deed executed after paying remaining sale consideration of Rs. 72,000/- up to 03.11.2005. Time was extended on 31.10.2005 up to 30.09.2006. The respondent was ready and willing to obtain sale deed in the meantime but it was avoided by the petitioner on false pretext. On these allegations suit was filed.

The petitioner contested the suit and filed his written statement on 08.08.2011 and denied execution of agreement to sell dated 04.11.2004. It has been stated by him that he was in need of Rs. 3,00,000/- due to illness of his wife. Due to good relation between them, the respondent agreed to pay this amount to the petitioner. For guarantee to return of the money, the respondent asked the petitioner to execute a security deed. The petitioner went to the office 2 of Sub-Registrar for execution of security deed. The respondent, in collusion of their men, prepared an agreement to sell and obtained signatures of the petitioner on it without reading and explaining him. The agreement to sell was obtained by committing fraud and not liable to be enforced.

The suit was tried by Civil Judge (Senior Division), who by his judgment dated 29.08.2011 decreed the suit. The petitioner filed an appeal (registered as Civil Appeal No. 92 of 2012) from the aforesaid decree. Before appellate court, the petitioner filed an application on 22.04.2015 for amendment of written statement and sought to add some more facts in written statement to the effect that subject matter of the agreement to sell was not a plot rather a house which assessed for house tax by municipality. Market value of the property in dispute at the time of agreement to sell was about Rs. 80,00,000/- and it is not the conduct of any prudent man to sell it for Rs. 3,72,000/-. This house did not have any independent passage and no one would like to purchase it. The respondent filed his objection and contested the amendment application and stated that the counsel for the petitioner had cross examined PW-1 on these points, which are sought to be added by the amendment application. These facts were well within knowledge of the petitioner before commencement of trial of the suit. Such an amendment cannot be allowed in appeal. Appellate Court by order dated 20.02.2016, held that in view of Proviso to Order 6, Rule 17 C.P.C. proposed amendment which were well within the knowledge of the petitioner, cannot be allowed. On these findings, he dismissed the amendment application. Hence this petition has been filed.

The counsel for the petitioner submitted that through proposed amendment, the petitioner sought to bring on record very vital and essential fact, which were necessary for the purpose of determining the real questions in controversy between the parties. Decree for specific performance of contract is a discretionary relief. The petitioner contested the suit on the ground that in the garb of security deed for advancing money, the respondent got his signatures on the agreement to sell. Subject matter of agreement to sell as mentioned in it was an open plot while actually on the spot there was a constructed house of value of 3 Rs. 80,00,000/. This fact is very essential and proves the fraud committed by the respondent. Supreme Court in Baldeo Singh v. Manohar Singh, (2006) 6 SCC 498 and Mahila Ram Kali Devi v. Nand Ram, (2015) 13 SCC 132, held that addition of a new ground of defense or substituting or altering a defense or taking inconsistent pleas in the written statement by way of amendment can be allowed. The order of appellate Court is illegal and Liable to be set aside.

I have considered the arguments of counsel for the petitioner and examined the record. By way of amendment in the year 2002, a Proviso has been added under Order 6, Rule 17 C.P.C., which is quoted below:-

Order 6, Rule 17 . Amendment of pleadings. - The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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.

Supreme Court in Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N., (2006) 12 SCC 1, held that under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order 6, Rule 17 was due to the recommendation of the Law Commission since Order (sic Rule) 17, as it existed prior to the amendment, was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of courts and, therefore, by the Civil Procedure Code (Amendment) Act, 2002, 4 provision has been restored by recognising the power of the court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their court case, and manifests the absence of due diligence on the part of the appellants dis-entitling them to relief.

Again Supreme Court in Chander Kanta Bansal v. Rajinder Singh Anand, (2008) 5 SCC 117, held that the words "due diligence" have not been defined in the Code. According to Oxford Dictionary (Edn. 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one''s work and duties, showing care and effort. As per Black''s Law Dictionary (18th Edn.), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edn. 13-A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs.

Supreme Court in again, in Vidyabai v. Padmalatha, (2009) 2 SCC 409 and P.A. Jayalakshmi v. H. Saradha, (2009) 14 SCC 525, held that proviso to Order 6, Rule 17 of the Code, is couched in a mandatory form. The court''s jurisdiction to allow such an application is taken away unless the conditions precedent therefore are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.

In J. Samuel v. Gattu Mahesh, (2012) 2 SCC 300, held that "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 5 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. A party requesting a relief stemming out of a claim is required to exercise due diligence and it is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party''s constructive knowledge, claim and is very critical to the outcome of the suit.

In present case, nothing has been said in respect of exercise of due diligence. The respondents took the plead that in cross examination of PW-1, these fact were asked to him, which has not been denied by the petitioner. Proviso to Order 6, Rule 17 C.P.C. was not in consideration in the cases relied upon by the petitioner. Impugned order do not suffer from any illegality.

In view of aforesaid discussions, this petition has no merit and is dismissed.