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Judgment
A.N. Venugopala Gowda, J.—The respondent herein has filed on 28.01.2005 in the City Civil Court, Bangalore, O.S. No. 789/2005 against the petitioners herein/defendants, to pass a Judgment and Decree of specific performance of a contract in terms of an agreement of sale dated 05.09.1992. The petitioners herein/defendants have filed joint written statements on 02.07.2005. The plaintiff filed an application seeking amendment of the plaint and the same was allowed on 24.07.2006. Issues having been raised based on the pleadings of the parties, the trial of the suit has commenced. On 20.07.2009, the plaintiff filed an affidavit, in lieu of examination in chief and has marked Exs. P1 to P9. On 08.02.2010, Ex. P10 and P11 were marked through PW. 1. The suit having been adjourned, the plaintiff engaged another counsel on 28.07.2010 and on 28.09.2010, filed I.A. No. 4 under Order VI Rule 17 of CPC, to amend the plaint in the manner proposed therein. Though statement of objections was filed to I.A. No. 4 and the claim was opposed, the learned Trial Judge has allowed the application, by an order dated 19.08.2011. Feeling aggrieved, the defendants have filed this writ petition and have sought quashing of the order passed on I.A. No. 4 by the Trial Court. Sri Ashok R. Kalyanashetty, learned advocate appearing for the petitioners contended that the trial of the suit having been commenced and I.A. 4 has been filed seeking permission to amend the plaint, the Trial Court having not arrived at the conclusion that in spite of due diligence, the plaintiff could not have raised the proposed pleading/matter before commencement of the trial, has committed a material error and illegality in allowing I.A. 4 and permitting the plaintiff to incorporate the proposed amendment in the plaint. He submitted that the tenable objections field by the defendants to I.A. 4 has not been considered, keeping in view the proviso under Rule 17 of Order VI of CPC and the interpretation placed on the said provisions in catena of decision of the Apex Court and this Court. Learned counsel submitted that there being absence of any due diligence on the part of the plaintiff, the Court having not arrived at the conclusion that in spite of due diligence the plaintiff could not have raised the pleading/matter before commencement of the trial, has committed illegality in allowing I.A. 4. Reliance was placed on the decisions in the cases of (i) Baldev Singh and Others, etc. Vs. Manohar Singh and Another, etc., (ii) Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others, (iii) J. Samuel and Others Vs. Gattu Mahesh and Others, and (iv) Smt. Shobha Surendar and another Smt. Shobha Surendar and Sri. Y.S. Surendar Murthy Vs. Sri. C.R. Nagaraja Setty and Others .
Sri Sunil S. Rao, learned advocate appearing for the respondents on the other hand made submission in support of the view taken by the Trial Court and submitted that in the facts and circumstances of the case, the Trial Court is justified in allowing I.A. 4. He placed reliance on the decision in the case of Rameshkumar Agarwal Vs. Rajmala Exports Pvt. Ltd. and Others, and sought dismissal of the writ petition.
In view of the rival contentions and the record of the writ, there being no dispute that I.A. 4 was filed after trial of the suit has commenced, the point for consideration is, "whether the Trial Court has committed any illegality in allowing I.A. 4?"
Order VI Rule 17 of CPC deals with amendment of pleadings. Undeniably, I.A. 4 was filed after commencement of trial of the suit. Hence, the plaintiff must show that in spite of due diligence, the proposed amendment could not have been sought earlier. The proposed amendment in I.A. 4 reads as follows:-
Add the following after para No. 5 as para No. 5A at page No. 9 of the plaint:
5A. it is submitted that on 05.09.1992 the plaintiff had entered into an agreement to purchase the schedule property for a sum of Rs. 10,00,000/- on 05.09.1992 he has paid a sum of Rs. 2,00,000/- said sum of Rs. 2,00,000/- was received by the defendant No. 1 said sum of Rs. 2,00,000/- lakhs was paid by way of cheque. The cheque was issued in the name of the defendant No. 1 since the other defendants have authorized the defendant No. 1 to receive the said sum of Rs. 2,00,000/- lakhs from the plaintiff since she is the eldest member in the family. On the day when the agreement of sale was entered into, the defendant No. 5 was a minor, the defendant No. 1 acted as the minor guardian of the defendant No. 5 and she executed the agreement of sale on behalf of defendant No. 5 as minor guardian.
It is further relevant to place on record that the defendant No. 2 on 03.09.1992 has executed a GPA in favour of the defendant No. 1 to act on her behalf also to sell the schedule property. The defendant No. 1 on the basis of the GPA she is executed the agreement of sale on behalf of the defendant No. 2 in favour of the plaintiff. However, in the agreement of sale dated 05.11.1992, 11 months time was stipulated for completion of the sale transaction. On he day when the defendants entered into the agreement of sale in favour of the plaintiff, they have categorically undertook to deliver the vacant possession of the schedule property at the time of execution and registration of the sale deed, on the day when they entered into an agreement the tenants were in occupation of the schedule property. As the defendants could not evict tenants within the time stipulated. They on 01.08.1993 have voluntarily extended the time for completion of the sale transaction by two more years i.e., upto 30.07.1999, in the regard they executed a shara. For the shara dated 01.08.1993 the defendant No. 1 and the defendant No. 4 have subscribed their signature since the defendant No. 3 was not available on that day. On 01.08.1993, the defendant No. 3 was not in tow, the defendant No. 1 has represented to the plaintiff stating that she would get her signature to the shara dated 01.08.1993 on a later date. The plaintiff reposing faith and confidence with the defendant No. 1 had kept quiet belonging that the defendant No. 1 would get signature of defendant No. 3 on a later date. Though the time for completion of the sale transaction could not evict the tenants who were in occupation of the suit property i.e., so as to deliver possession of the property to the plaintiffs in terms of the agreement of sale dated 05.08.1992.
On 20.06.1995 the defendants voluntarily approached the plaintiff and required him to bear with their for another three years from thereof, so as to execute the sale deed since they could get the tenants evicted from the schedule property. On 20.06.1998 the defendants voluntarily extended time for three years from thereof i.e., upto 19.06.1998, accordingly, on 20.06.1995 they executed another shara on the hind side of the agreement of sale dated 05.09.1992. Even for the shara dated 20.06.1995, the defendant Nos. 1 and 4 have subscribed their signatures. The defendant No. 1 all through was in the forefront, it is she who represented the interest of the family, has executed the sharas dated 01.08.1993 and 20.06.1995, it is submitted that on 23.03.1996 the defendants approached the plaintiff and requested him to pay another sum of Rs. 3,00,000/- the plaintiff conceding to the request of the defendants paid a sum of Rs. 3,00,000/- on 23.03.1996 by way of cheque. The material particulars of the cheque issued by him are as hereunder:
Cheque bearing No. 347879 dated 23.03.1996 for a sum of Rs. 3,00,000/- (Rupees Three Lakhs only) drawn on Vysya Bank, Chitradurga Branch, the favour of Janaki.
No doubt the defendants voluntarily extended the time upto 19.06.1998, even after 19.06.1998, the defendants could not evict the tenants who are in occupation of the schedule property. Subsequent to 19.06.1998 the plaintiff approached the defendants and requested the defendants to sell the schedule property in terms of the agreement of sale and also informed them that all through he is ready and willing to performs his part of the obligation and also informed that he is ready with the balance sale consideration amount so also'' the money which is required to purchases the stamp paper and to meet the incidental expenses in that regard. As the defendants could not evict the tenants who are in occupation of the schedule property did not execute the sale deed in terms of the agreement of sale dated 05.09.1992. They requested the plaintiff to wait till the tenants are evicted from the suit schedule property. On account of uncertainty with regard to getting the tenants evicted from the schedule property, the defendants requested the plaintiff to wait till the tenants are evicted from the schedule premises after that they would executed the sale deed in terms of the agreement of the sale dated 05.09.1992, the plaintiff reposing faith and confidence with the defendants did not insist further shara on the agreement of sale, he agreed to wait till the tenants are evicted as suggested by the defendant No. 1, as such the defendants waived the time factor for completion of the sale transaction. As such the plaintiff was constrained to wait till the tenants were evicted from the schedule premised to verify whether the tenants who are in occupation of the schedule property were vacated or not further he prevailed upon the defendants to see that the tenants are evicted from the schedule property. This went on from 19.06.1998 up till end of November 2004 when the defendants did not get the tenants evicted so long the plaintiff suspected the credibility of the defendants in not getting the tenants evicted from the schedule property, so as to execute the sale deed in favour of the plaintiff in terms of the agreement of sale dated 05.09.1992.
Thereafter, the plaintiff insisted the defendant that the would waive the condition as regards the eviction of the tenants and that he would purchase the schedule property as is where is basis i.e., in the month of November 2004. When the plaintiff agreed to purchase the property ''as is where is'' basis, then conveying the property. Thereafter the plaintiff decided not to wait any longer and got issued a notice in the month of December 2004 calling upon the defendants to execute the sale deed ''as is where is'' basis, i.e., in terms of the agreement of sale dated 05.09.1992. The defendant though received the said notice they neither replied nor complied with the same. As such the plaintiff was constrained to approach this Hon''ble Court with the suit for specific performance of the agreement of sale dated 05.09.1992. Subsequent to filing of the suit, the tenants who are in occupation of the schedule property i.e., Ralies India Pvt., vacated the schedule property. The defendants with a dishonest intention did not convey the schedule property even after the tenant has vacated the schedule premises. The conduct on the part of the defendants in not conveying the schedule property by abiding with the terms of the agreement is highly deprivable.
Remove the letter ''2'' found in second line of the schedule to the plaint at page No. 12 after the letter ''Y'' Before The Word ''and'' and in place of it add the letter ''R''.
I.A. 4 was the second application filed by the plaintiff seeking amendment of the plaint. The earlier application filed by the plaintiff was allowed and the plaintiff was permitted to amend the plaint vide an order passed on 24.07.2006.
The material part of the affidavit in support of prayer in I.A. 4 for grant of permission to amend the plaint, reads as follows:-
I state that I got presented the plaint through Sri. S.M. Siddappa, Advocate. Later for various reasons I was constrained to change the counsel i.e., presently I have engaged Sri. T. Seshagiri Rao as my Advocate. The present advocate, who is on record upon going through the case papers informed me stating that there is no reference with regard to shams dated 01.08.1993 and 20.06.1995, and also there is no proper reference with regard to payment of Rs. 3,00,000/- made on 23.03.1996, also informed me that it is not made clear in the plaint as to what transpired in between 1998 and 2005. As such in order to bring the said facts on record it has become inevitable for me to seek amendment of the plaint.
In the case of Smt. Shobha Surendar (supra) with regard to meaning of ''due diligence'', it has been held as follows:
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. It means doing everything reasonable, not everything possible. It means a reasonable diligence, the diligence a prudent man would exercise in the conduct of his own affairs. In order to seek delayed amendment, the applicant must show that despite exercising such care and caution, that was reasonably expected and that is ordinarily exercised by a prudent man, he could not take up the plea before the trial was commenced.
From the proposed amendment and the affidavit filed in support of I.A. 4, the material parts of which has been extracted supra, it is clear that the plaintiff had the knowledge of the facts proposed to be brought on record by way of amendment vide I.A. 4 at the time of filing of the suit or when he filed first application seeking amendment of the plaint. Only reason stated in the affidavit in support of I.A. 4 is that, "on account of change of advocate and the advice given by him, it become inevitable to the plaintiff to seek amendment of the plaint". The reasons assigned to grant the prayer in I.A. 4 does not make out that the plaintiff has acted with due diligence. The additional pleading proposed was well within the knowledge of the plaintiff. Despite, having knowledge of the same, he did not bring the matter before the Court prior to commencement of the trial. The plaintiff has not acted with due diligence. As such, the proviso under Rule 17 of Order VI of CPC comes in the way of allowing the application for amendment-I.A. 4.
From the ratio of decision in the case of Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, it is clear that the courts have ample power to allow an application for amendment of a pleading. However, the parties seeking amendment of the pleadings must satisfy that the same is required in the ends of justice and for the purpose of determination of real questions in controversy between the parties.
From the perusal of the impugned order it is clear that the Trial Court has not kept in view the relevant facts, more particularly, the proviso under Rule 17 of Order VI of CPC, since trial of the suit has commenced. I.A. 4 has been allowed by the Trial Court as a matter of course, which is clear from the following observations:-
On scrutiny of the proposed amendment the plaintiff has explained some oral transactions and what all conspired between the parties in the year 1998 and till the year 2005 in respect of passing of the consideration and also with regard to sharas made on the suit documents. Even such amendment is allowed subject to strict proof of the same by the plaintiff. The defendants further contended that the plaintiff has filed this application to over come his admission and to save the Law of Limitation etc. For that in my opinion, the defendants can file their defence, in this regard after allowing the amendment. The defendants in the objections denied each and every ground mentioned in the proposed amendment and affidavit. That cannot be answered at this stage. It can be answered on after filing written statement, framing of necessary issues and also after full pledged trial.
In the case of J. Samuel (supra), it has been held as follows:
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 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 case of Rameshkumar Agarwal (supra), an amendment application was filed immediately after filing of the suit, i.e., before commencement of the trial and by taking note of the fact that the plaintiff wanted to explain how the money was paid, though necessary averments were laid in the original plaint and there being no alternative cause of action and no prejudice being caused to the defendants and the proposed amendment being only furnishing of details regarding payment of consideration, the amendment having been allowed, was upheld. The case factual scenario in this case is totally different. Hence, the said decision has no application to this case. Since the plaintiff has not acted with due diligence and since the amendment proposed after commencement of the trial of the suit would prejudice the case of the defendants, the Trial Court has acted irrationally and with material irregularity in allowing I.A. 4. The impugned order has been passed by the Trial Court on account of misdirection adopted in the matter, without keeping in view the proviso under Order VI Rule 17 of CPC and interpretation placed on it, in the decisions noticed at para 2 supra. The impugned order being irrational and illegal is liable to be quashed.
In the result, the writ petition is allowed and the impugned order is quashed. I.A. 4 filed in the Trial Court being untenable, stands dismissed. The suit shall proceed from the stage at which it is pending. The Trial Court is directed to decide the suit, uninfluenced by any of the observations made herein above, which are confined only for considering the claim made for amendment of the plaint for the second time by filing I.A. 4 and the observations shall not be construed as an expression of opinion on the merit of the case either of the parties. The suit be decided in accordance with law, expeditiously and before 31st December 2013.
There shall be no order as to costs.