Smt. Sushila Devi vs Banwarilal Jain

Sujoy Paul, J.—Heard on admission. This petition filed under Article 227 of the Constitution is directed against the order dated 10.12.2013 passed in Original Civil Suit No. 29A/2010 by Second Additional District Judge, Morena.

Petitioner/defendant No. 1 preferred an application under Order 6 Rule 17 CPC on 3.9.2013 (Annexure P-5). This application is rejected by the court below on the ground that the application is filed much after commencement of the trial and no reasons are assigned for fling this application belatedly. Learned counsel for the petitioner submits that the amendment application was filed at the stage of defendant evidence but amendment ought to have been allowed because it was necessary for lawful adjudication of the matter. He submits that if amendment is allowed, no prejudice would be caused to the other side and the court below has erred in rejecting the said application.

I have heard learned counsel for the petitioner at length.

A perusal of the amendment application makes it clear that the petitioner has not shown a single reason as to why the said application could not be preferred earlier. In other words, the petitioner has not shown "due diligence" in filing the said application. The Apex Court in Vidyabai and Others Vs. Padmalatha and Another, has taken note of the effect of the proviso to Order 6 Rule 17 CPC, which makes it clear that no application for amendment shall be allowed after 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 commencement of trial. In para 19 of the judgment of Vidyabai (supra) the Apex Court opined that the proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court''s jurisdiction, in a case of this nature is limited. Unless the jurisdictional fact is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.

In the light of aforesaid litmus test, laid down by Supreme Court interpreting the proviso to Order 6 Rule 17 CPC, it is clear that the party seeking amendment needs to show due diligence when application for amendment is filed after commencement of the trial. In the present case, no reasons are shown and, therefore, jurisdictional test is not satisfied by the petitioner before the trial court.

The aforesaid view taken in Vidyabai (supra) is followed by Supreme Court in J. Samuel and Others Vs. Gattu Mahesh and Others, . In Abdul Rehman and Another Vs. Mohd. Ruldu and Others, the Apex Court has not deviated from the earlier view. Thus, in my opinion, the court below has taken a plausible view in accordance with law in rejecting the amendment application.

The scope of interference under Article 227 of the Constitution is limited. Unless the order impugned is shown to be without jurisdiction, suffers from manifest procedural impropriety or illegality, no interference is warranted. Another view is possible is not a ground for interference. There is no ingredient on which any interference can be made. Petition is meritless and is hereby dismissed.