Shyam Babu and Others vs Purushottam Singh and Others

Sujoy Paul, J.—This petition filed under Article 227 of the Constitution, is directed against the order dated 17th August, 2010 (Annexure P-1) whereby the application preferred by petitioners-plaintiffs under Order 6 Rule 17 CPC is rejected by the court below.

In a suit for declaration and permanent injunction filed in the year 2006, the application for amendment (Annexure P-5) was filed on 07-04-2010. Respondents No. 2 & 3-defendants filed their reply (Annexure P-6) and contended that the amendment was time-barred. The amendment will change basic nature of the case. The evidence of both the parties is over and the Court below has even heard the arguments of the parties and matter was reserved for orders. At this stage, the amendment is not permissible.

The court below rejected the amendment application on the ground that averments of the amendment application were known to the plaintiffs. These facts could have been incorporated in the main plaint. If amendment at this stage is allowed, the clock will be required to be put back to the stage of "0" (zero). In other words, the trial will be required to be conducted since beginning. It is further held by the court below that since the facts which became the averments of amendment application were known to the plaintiffs since beginning and despite that, it was not incorporated/pleaded, it cannot be permitted to be done by way of amendment. By taking note of proviso to Order 6 rule 17 CPC, it is opined that in absence of showing ''due diligence'' amendment is impermissible.

Shri A.K. Saxena, learned counsel for respondents No. 2 and 3 supported the impugned order and submits that there is no error on which interference can be made.

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

The amendment application was filed by the plaintiffs at the fag end of the suit proceedings. The evidence of the parties was recorded. Final hearing took place and thereafter, before judgment, amendment application is filed. The petitioners have not attacked the impugned order inasmuch as finding is given by the court below that the facts which became the averments of amendment application were known to the petitioners-plaintiffs since beginning.

In the opinion of this Court, in the year 2002, proviso to Order 6 Rule 17 CPC was inserted which makes it obligatory for the party seeking amendment to show ''due diligence'' if the amendment is prayed for after commencement of trial. Admittedly, in the present case, trial commenced much before and was at the stage of its conclusion. The amendment application nowhere establishes that the plaintiffs have shown ''due diligence'' in filing the said application.

The Apex Court in the case of Vidyabai and Others Vs. Padmalatha and Another, opined that in absence of showing ''due diligence'' the jurisdictional fact is not established. Unless it is established, the trial court has no jurisdiction to allow the amendment application.

The Apex Court further in the case of Abdul Rehman and Another Vs. Mohd. Ruldu and Others, opined as under:-

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)

A bare perusal of these judgments make it clear that the amendment prayed for before commencement of trial and an amendment prayed for after commencement of trial needs to be examined on different parameters. After commencement of trial, party seeking amendment must show ''due diligence''. In absence thereof, amendment cannot be allowed.

In the opinion of this Court, the court below has assigned plausible and justifiable reason in rejecting the amendment application. The plaintiffs have not established ''due diligence''. The amendment application was filed at the final stage. If it is allowed, it will put the clock back to the stage of "0" (zero). These are relevant considerations which were properly taken into consideration by the court below.

The scope of interference under Article 227 of the Constitution is limited. If the order is shown to be passed by a court having no jurisdiction, it suffers from manifest procedural impropriety or perversity, interference can be made. Interference is made to ensure that courts below act within the bounds of their authority. Another view is possible, is not a ground for interference. Interference can be made sparingly for the said purpose and not for correcting error of facts and law in a routine manner. This view is taken in the case of Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, .

In view of the aforesaid, I find no legal infirmity in the impugned order. Thus, admission of this petition is declined. Petition is accordingly dismissed. No costs.