Shrawan Kumar Jain vs The State of M.P.

Sujoy Paul, J.—This petition filed under Article 227 of the Constitution assails the order dated 14.12.2012 whereby application of the petitioner / plaintiff preferred under Order 6 Rule 17 C.P.C is rejected by the Court below.

The petitioner has filed a suit for declaration. The said suit was registered as case No. 26A/2009. The respondents filed their written statement. Issues were framed. Thereafter plaintiff led and completed its evidence. Thereafter civil suit was fixed for defendant evidence. At this stage on 03.12.12, the plaintiff filed the said application for amendment. The defendant No.3 / respondent No.3 filed its reply. The Court below rejected the amendment application on the ground that the petitioner has not satisfied the requirement of proviso to Order 6 Rule 17 C.P.C.

Shri N.K. Gupta, learned senior counsel submits that para 3 & 4 of the amendment application shows that the plaintiff has established the "due diligence" and therefore, the order of court below is liable to be interfered with.

Shri Yogesh Singhal, counsel for the respondent No.3, supported the order of the Court below. No other point is pressed by the parties.

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

This is not in dispute that amendment application was filed at the stage when defendant evidence was being recorded. Order 6 Rule 17 was amended by C.P.C. Amendment Act, 2002, w.e.f. 2002. The said amendment was considered by the Apex Court in the case of Vidyabai and Others Vs. Padmalatha and Another, . In Vidya Bai (Supra) the Apex Court made it clear that amendment application cannot be allowed after commencement of trial, unless it is established that in spite of due diligence, the matter could not be raised before commencement of trial. The Apex Court further opined that it is a jurisdictional fact which needs to be established by the parties seeking amendment. In absence of establishing jurisdictional fact, the court below will have no jurisdiction to allow the amendment application.

On the anvil of this if present matter is examined, it will be clear that the court below has not erred in rejecting the amendment application. In para 3 and 4 of the said application on which heavy reliance is placed by learned counsel for the plaintiff, it is stated that in view of proposed amendment, nature of suit will not be changed. The State Government has not filed any written statement before the trial Court. After filing of written statement by defendant No.3, his witnesses Jai Prakash and Shravan Kumar Jain were cross- examined. Upon cross-examination, the petitioner came to know about the fact that necessitated the said amendment. The said fact is regarding the order passed by SDO, Guna Dated 06.09.1998. It is seen that the said order of SDO, Guna was filed by defendant No.3 before the Court below on 23.06.2010. In reply (Annexure P/5), the defendant No.3 made it clear that said document was placed on record after providing copy to the plaintiff. Thus the plaintiff came to know about this order in the year 2010 itself. In the opinion of this Court, the plaintiff has failed to establish "due diligence". Once order on the strength of which amendment is prayed for was supplied and filed in 2010, it cannot be accepted that plaintiff has established "due diligence".

The scope of interference under Article 227 of the Constitution is limited. If order is shown to be passed by a Court having no jurisdiction, it suffers from manifest procedural impropriety or perversity, interference can be made. Even an erroneous order is not required to be corrected in these proceedings under Article 227 of the Constitution. The basic purpose of exercising the said jurisdiction is to keep the courts below within the bounds of their authority.

Interference can be made sparingly for the said purpose and not for correcting error of facts and law in a routine manner. Another view is possible, is not a ground for interference. This view is taken in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, . There is no ingredient on which interference can be made in this petition. Interference is declined.

Petition is dismissed. No costs.