Premlata vs Ramsevak Sindhi

This petition filed under Article 227 of the Constitution takes exception to the order dated 10.03.2018 (Annexure-P/1) whereby application preferred by petitioners/defendant Nos. 1 to 3 under Order 6 Rule 17 CPC was rejected by Court below on the ground that petitioners have caused delay in proceedings from time to time by filing several miscellaneous applications. The instant amendment application was filed after commencement of trial. No 'due diligence' was shown by petitioners while filing the amendment application after commencement of trial as per Proviso to Order 6 Rule 17 CPC. In absence of establishing 'due diligence', in the light of judgment of Supreme Court reported in AIR 2007 SC 806, Ajendraprasadji N. Pandey & Anr. Vs. Swami Keshavprakeshdasji N. & Ors., the amendment cannot be allowed.

Criticizing the said order, Shri Devdatt Bhave, learned counsel for the petitioners submits that the petitioners intended to clarify and strengthen their pleadings in the written statement on account of the fact that plaint averments mentioned in certain paragraphs need to be rebutted. The amendment is clarificatory in nature and does not change the nature of the case. No prejudice will be caused to the other side if amendment application is allowed. At best, opposite party can be compensated in terms of cost for belatedly filing the application as per 2013 (2) MPLJ 147 (Rampal Vs. Babulal & others). By placing reliance on 2011 (1) MPLJ 239 (Neeta Narang vs. Beena Valicha), Shri Bhave submits that in that case, the amendment which was necessary for lawful adjudication of matter was allowed by the Division Bench of this Court even after commencement of trial and after considering the Proviso to Order 6 Rule 17 CPC.

Next contention of Shri Bhave is based on a recent judgment of Supreme Court in the case of State of Bihar & others Vs. Modern Tent House & another reported in 2017 (8) SCC 567. It is urged that in the light of aforesaid pronouncements, the Court below has erred in disallowing the application.

Per contra, Shri Gaharwar and Shri S.A. Waqil, learned counsel for the respondents supported the impugned order. Shri Waqil relied on the judgment of the Supreme Court in the case of Ajendra Prasad jee & Pandey (supra).

No other point is pressed by learned counsel for the parties.

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

The Apex Court in Ajendra Prasad Jee (supra) opined as under:

"The above averment, in our opinion, does not satisfy the requirement of Order VI Rule 17 without giving the particulars which would satisfy the requirement of law that the matters now sought to be introduced by the amendment could not have been raised earlier in respect of due diligence. As held by this Court in Kailash Vs. Nankhu & Ors. (supra), the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence."

The effect of proviso was again considered by Supreme Court in the case of Vidya Bai and others Vs. Padmalatha and another (2009 (2) SCC 409). It was poignantly held that Order 6 Rule 17 CPC is couched in a mandatory form. Unless the jurisdictional fact, as envisaged in the proviso to Order 6 Rule 17 CPC is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint. The Court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor 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. From the order passed by the trial Judge, it is evident that the respondents had not been able to fulfill the said precondition. The point was again came up for consideration in case of Abdul Rehman & Anr vs Mohd.Ruldu & Others, 2012 (11) SCC 341. It was clearly held that an amendment application filed before commencement of trial needs to be considered leniently, whereas an amendment application filed after commencement of trial must establish 'due diligence' Relevant portion reads as under:

"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)

On a specific query from the Bench, learned counsel for the petitioners is unable to show any pleading in the amendment application, which may fulfill the requirement of 'due diligence' or in other words may establish that amendment application was indeed filed diligently with valid reasons.

In the case of State of Bihar & others Vs. Modern Tent House & another reported in 2017 (8) SCC 567, and in Rampal (supra) the statutory provision and legislative mandate ingrained in Proviso to Order 6 Rule 17 CPC has not been considered whereas in the authoritative pronouncement of Vidya Devi, Ajendra Prasad Jee and Abdul Rehman (supra), the Apex Court decided the matter after taking note of the relevant statutory provision. Thus, I deem it proper to follow the ratio decidendi laid down in Abdul Rehman (Supra) and other two judgments mentioned hereinabove. In the teeth of said judgments, if impugned order is tested, the inevitable result would be to affirm the order because petitioners have not assigned any reason whatsoever for belatedly filing the amendment application after commencement of trial. Pertinently, during the course of hearing, Shri Bhave fairly admitted that amendment application was filed after commencement of trial.

The scope of interference under Article 227 of the Constitution is limited. If order impugned suffers from any jurisdictional error, palpable perversity or manifest procedural impropriety, interference can be made. Another view is possible is not a ground for interference. This court is not required to sit in appeal in this jurisdiction nor required to act as a bull in the China Shop. Even a wrong order on facts and law is not required to be interfered with on a drop of hat or on mere asking. See Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil, (2010) SCC 329. In absence of establishing any ingredients on which interference can be made, interference is declined. Petition is dismissed.