Sarita Ranjan vs Special Judge

Ram Surat Ram (Maurya), J.—Heard Sri Durga Charan Mukherjee, for the petitioner and Sri Manish Kumar, for respondent-1. The writ petition has been filed for quashing the order dated 9.5.2014, rejecting the amendment application of the petitioner seeking amendment of her written statement.

Durgawati (respondent-5) filed an Election Petition (registered as Election Petition No. 1 of 2010) u/s 27(2) of U.P. Kshetra Panchayat Evam Zila Panchayat Adhiniyam, 1961, challenging the declaration of election result of the petitioner as Member of Zila Panchayat, Sultanpur from of Ward No. 1. The petitioner contested the Election Petition and filed her written statement on 21.4.2011. Thereafter, trial of Election Petition was started and evidence of the parties were completed.

The petitioner filed an application for amendment of her written statement under Order VI, Rule 17 C.P.C., on 3.5.2014. In effect to the proposed amendment, the petitioner wants to (i) add the words "under Order VII, Rule 11, CPC" in paragraph 23-ka of the written statement, (ii) to correct the number of votes mentioned in paragraph 23-ka, (iii) correct the number of votes received by Lakhpati, as mentioned in paragraph 23-ka, and (iv) thereafter, she wants to add paragraph 30-A to the effect that the election petition was not verified according to the provisions of Order VI, Rule 15, CPC and is liable to be dismissed on this ground alone, paragraph 30-B to the effect that the election petition was not verified according to the provisions of sections 81 and 83 of Representation of Peoples Act, 1951 and is liable to be dismissed on this ground alone and paragraph 30-C to the effect that in paragraph 3-ka of the election petition, it has been stated that complaints have been made to the Assistant Election Officer, Ward No. 1, Zila Panchayat, Sultanpur, Observer, Panchayat Election and two letters were made to the Election Commission, Lucknow through fax, but copies of these papers have not been attached along with the election petition, as such, the election petition is liable to be dismissed u/s 83 and 86 of Representation of People Act, 1951. Thus, in all the proposed amendments, the defect in the election petition has been pointed out, which may have been seen by the petitioner and her Counsel while preparing the written statement. The Court below by the impugned order dated 9.5.2014 held that evidence of the parties were completed and the case is fixed for final arguments of the parties. There in nothing on record to show that in spite of due diligence, proposed amendments were not noticed earlier. On these findings the amendment application has been rejected. Hence this writ petition has been filed.

The Counsel for the petitioner submitted that Order VI, Rule 17 C.P.C. gives a wide discretion to the Court to permit the parties to amend the pleadings. Relying upon the judgment of Supreme Court in Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N., 2005(60) ALR 483 (SC) : 2005(30) AIC 30 (SC) he submitted that the proviso will not override the main provision as held in above case that any section should not be so interpreted that part of it becomes otiose and meaningless and very often a proviso itself is read as a substantive provision it has to be given full effect. He further relied upon the judgments of Supreme Court in Shakuntala Devi Jain Vs. Kuntal Kumari and Others, and Davinder Pal Sehgal and Another Vs. Partap Steel Rolling Mills Pvt. Ltd. and Others, and judgments of this Court in Phool Chand v. D.D.C. and others, 2004(96) RD 41 and Krishna Baldeo v. State of U.P., 2011(29) LCD 673 in which for the purposes of condonation of delay u/s 5 of Limitation Act, 1963, it has been held that ''sufficient cause'' must be construed liberally so as to advance substantial justice. He submitted that the Court below has illegally rejected the amendment application.

I have considered the argument of the Counsel for the petitioner. Order VI, Rule 17, C.P.C., as amended in the year 2002, is quoted below:--

"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 Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), held that Order VI, Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision.

The phrase "due diligence" came for consideration before Supreme Court in Chander Kanta Bansal Vs. Rajinder Singh Anand, in which it has been 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 again in J. Samuel and Others Vs. Gattu Mahesh and Others, 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 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 the given facts, there is a clear lack of "due diligence" and the mistake committed certainly does not come within the preview of a typographical error.

In Ajendraprasadji''s case the phrase "due diligence" has not been interpreted nor it has taken notice of earlier decision of Salem Advocate Bar Assn. (II)''s, in which object of 2002 amendment has been specified. Ajendraprasadji''s case has been noticed but not accepted by Supreme Court in J. Samuel''s case. In view of the latest decision of Supreme Court, Trial Court has not committed any illegality in rejecting the amendment application as the negligence committed by the Counsel cannot be treated as exercise of "due diligence". The other cases relied upon by the Counsel for the petitioners, relate to ''sufficient cause'' for condonation of delay u/s 5 of Limitation Act, 1963 and have no application in this case. In view of the aforesaid discussions, the writ petition has no merit and is dismissed.