Subhankar Sarangi vs Raghunath Tripathy

Dr. B.R. Sarangi, J.—The Plaintiff-Petitioners have filed this petition assailing the Order Dated 29.10.2009 passed by the Learned Civil Judge (Senior Division), Bargarh in Civil Suit No. 195 of 2007 under Annexure-5 rejecting the application filed for amendment of the plaint under Order 6, Rule 17, CPC. The epitome of the facts of the case is that the Petitioners, as Plaintiffs, filed C.S. No. 195 of 2007 before the Learned Civil Judge (Senior Division), Bargarh seeking for declaration of their right, title & interest in respect of the suit land. The Plaintiff''s grandfather had purchased some land as mentioned in the schedule vide registered sale deed Nos. 6405, 6027 & 263 in between 1971 & 1970. On receipt of consideration money & after execution of sale deed, possession was delivered in the year 1971 & 1978 respectively. Late Bhojraj Sarangi, the grandfather of the Plaintiffs had executed a will in favour of the Plaintiffs, i.e., his grand sons, which was duly executed by the testators in presence of the attesting witnesses, his son, daughter-in-law & some gentlemen. After execution of the sale deed, Late Bhojraj Sarangi filed an application before the Tahasildar for mutation of the land, but the Tahasildar refused to accept the said application as the sale deed contained his Hamid settlement plot. Therefore, the suit has been filed by the Plaintiffs for declaration of their right, title & interest & confirmation of possession in respect of the suit land.

On being noticed, Defendant-Opp. Party No. 1 appeared & filed his written statement admitting the case of the Plaintiffs, whereas Defendant-Opp. Party No. 2 filed written statement denying the averments made in the plaint.

In course of hearing of the suit, the Plaintiff-Petitioners having realized that certain facts have not been specifically pleaded in the plaint, which have bearing on the merits of the case, filed an application under Order 6, Rule 17, CPC for amendment of the plaint vide Annexure-3 to this Writ Petition. In the said application, they have mentioned that after purchasing the land in between 1971 & 1918, Late Bhojraj Sarangi had constructed a pucca house with title roofs. In the year 1978 he also purchased the adjacent land from Defendant No. 1. After the house was constructed it was included in Bargarh Municipality bearing Holding No. 2112 dated 27.2.1976. Subsequently, he removed the tile roof & constructed a pucca double storied building, which is being possessed by the Plaintiff-Petitioners. Late Bhojraj Sarangi had also filed T.S. No. 59 of 1982 for easementary right.

Defendant No. 2 filed objection to such proposed amendment under Annexure-4.

Learned Trial Court upon hearing the parties, rejected the said petition for amendment on the ground that the Plaintiffs have not assigned any reason to show that in spite of due diligence, they could not plead these facts, which they want to incorporate by way of amendment to the plaint. Further, the Trial Court also observed that the amendment sought for, if allowed, will change the nature & character of the suit, & thereby the Defendant will be prejudiced.

Mrs. Sujata Jena, Learned Counsel appearing for the Plaintiff-Petitioners states that the amendment sought for is clarificatory in nature in view of the fact that the Plaintiff-Petitioners have specifically pleaded in the application that after execution of the sale deed, delivery of possession was given to Late Bhojraj Sarangi & since then he was possessing the land & after him, the Plaintiff-Petitioners are in possession of the same. By way of amendment the Plaintiff-Petitioners wanted to clarify that the house was constructed on the said plot by Late Bhojraj Sarangi & it has been included in the Bargarh Municipality. Therefore, the introduction of fact being clarificatory in nature, will not affect the nature & character of the suit, which was filed for declaration or right, title & interest & confirmation of possession & therefore no prejudice will be caused to Defendant No. 2. On the contrary, if the amendment will not be allowed, it will lead to multiplicity of proceeding, which has not been considered by the Learned Trial Court. It is further argued that even if the application for amendment has been filed at belated stage, the same should not be refused as the same is necessary to decide the real controversy between the parties. To substantiate such contention, she has relied upon the Judgments in Surendra Kumar Sharma v. Makhan Singh, 2009 (II) OLR (SC) 880, & Gangadhar Muduli v. Maguni Mohanty & anr., 2012 (Supp. II) OLR 98.

Though the notice issued has become sufficient against the Opp. Parties, none appears on their behalf. Since the suit is of the year 2007 & the same has been stayed by this Court on 12.1.2010 in Misc. Case No. 15714 of 2009, this Court has proceeded with the matter for final disposal as the Defendant-Opp. Parties did not choose to appear in the case.

Order 6, Rule 17, CPC deals with amendment of pleading, which reads as follows:

"17. Amendment of pleadings - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner & on such terms as may be just, & all such amendments shall be made as may be necessary for 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."

The proviso to Order 6, Rule 17, CPC puts an embargo to entertain an application for amendment after the trial has commenced, unless the Court comes to a conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. In view of the proviso to Order 6, Rule 17, CPC, it is to be examined whether the amendment sought for by the Plaintiff after commencement of trial can be permitted or not.

In Chander Kanta Bansal Vs. Rajinder Singh Anand, the Apex Court considering the provisions contained in Order 6, Rule 17, CPC & the proviso thereof & analyzing the meaning of "due diligence" has stated as follows:

"However, if it is established that in spite of "due diligence" the party could not have raised the matter before the commencement of trial depending on the circumstances, the Court is free to order such application. The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition 2006), the word "diligence" means careful & persistent application or effort. "Diligent" means careful & steady in application to one''s work & duties, showing care & effort. As per Black''s Law Dictionary (Eighth Edition), "diligence" means a continual effort to accomplish something, care; caution; the attention & care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, & ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words & Phrases by Drain-Dyspnea (Permanent Edition 13A) "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. It is clear that unless the party takes prompt steps, mere action cannot be accepted & file a petition after the commencement of trial. As mentioned earlier, in the case on hand, the application itself came to be filed only after 18 years & till the death of her first son Sunit Gupta, Chartered Accountant, had not taken any steps about the so-called agreement. Even after his death in the year 1998, the petition was filed only in 2004. The explanation offered by the Defendant cannot be accepted since she did not mention anything when she was examined as witness."

In Vidyabai and Others Vs. Padmalatha and Another, , the Apex Court has held that it is the primary duty of the Court to decide as to whether such amendment is necessary to decide the real dispute in between the parties. Only if such condition is fulfilled amendment is to be allowed. Further, the proviso appended to Order 6, Rule 17, CPC restricts the power of the Court & puts an embargo on exercise of its jurisdiction. The Court''s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint.

In Union of India (UOI) Vs. Pramod Gupta (D) by L.Rs. and Others, the Apex Court cautioned that delay & latches on the part of the parties to the proceeding would also be a relevant factor for allowing or disallowing the application for amendment of the pleadings.

Taking into account the provisions contained in Order 6, Rule 17, CPC & the law laid down by the Apex Court referred to supra, it is to be adjudged whether the amendment sought for by the Plaintiffs can be allowed at this stage. The application for amendment of plaint has been filed at a stage after commencement of trial when the Plaintiffs had already adduced evidence of three witnesses who have been examined & cross-examined & as such, while seeking such amendment, the application for amendment does not contain any reason to show "due diligence" for seeking the amendment at belated stage more so, the facts, which the Plaintiffs want to incorporate by way of amendment, are already on record to the extent that after execution of the sale deed, delivery of possession was given to Late Bhojraj Sarangi & since then he was in possession of the land & after him, the Plaintiff-Petitioners are in possession of the same. If it is the case of the Plaintiffs that after execution of sale deed, delivery of possession having been given, Late Bhojraj Sarangi possessed the land & after him, the present Petitioners, whether Late Bhojraj Sarangi had constructed a house after remaining in possession & the said house was included in the holding under Bargarh Municipality, which the Plaintiffs-Petitioners want to bring on record by way of amendment, is necessary & corollary to the facts already pleaded in the plaint. Even if the same is not brought by way of amendment, that itself cannot take away the rights of the Plaintiff-Petitioners to remain in possession of the property in question. Therefore, the amendment sought, factually has no relevance save & except to buy some time in a proceeding for no reasons.

On the other hand, no "due diligence" has been shown such filing of such amendment application, thereby in view of the embargo to the proviso to Order 6, Rule 17, CPC, the Court has got limited jurisdiction to entertain the application for amendment after trial has commenced. In absence of any specific pleading with regard to "due diligence", the amendment sought cannot be allowed. In Pramod Gupta (supra), the Apex Court has cautioned that delay & latches on the part of the parties to the proceeding also are the relevant factors for allowing or disallowing the application for amendment of the pleading. After commencement of trial, when three witnesses have already been examined from the side of the Plaintiff, the application filed for amendment without assigning any reason showing due diligence, should not have been allowed.

So far as the reliance placed by the Learned Counsel for the Petitioners on Surendra Kumar Sharma (supra) & Gangadhar Muduli (supra) is concerned, considering the factual difference between the present case & the cited cases, this Court is of the view that the said Judgments are not applicable to the present context. For the foregoing reasons, this Court finds that the Learned Trial Court has not committed any illegality or irregularity in rejecting the petition for amendment of the plaint under Order 6, Rule 17, CPC. Accordingly, the impugned Order Dated 29.10.2009 passed by the Learned Civil Judge (Senior Division), Bargarh in Civil Suit No. 195 of 2007 under Annexure-5 is confirmed. In the result, the Writ Petition fails & the same is dismissed.