Jagdish Chandra And 3 Others vs Raj Kumar And 2 Others
2015 Latest Caselaw 5310 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 58
 
AFR
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 6280 of 2015
 

 
Petitioner :- Jagdish Chandra And 3 Others
 
Respondent :- Raj Kumar And 2 Others
 
Counsel for Petitioner :- Ramendra Asthana
 

 
Hon'ble Suneet Kumar,J.

The petition is directed against the order arising out of rejection of the application under Order 6 Rule 17 CPC.

The plaintiff-respondent instituted a suit for permanent injunction and  for cancellation of exparte decree passed in Original Suit No.185 of 2006. The applicant-defendant contested the suit by filing written statement and counter claim. The relief sought in the counter claim was for mandatory injunction against the plaintiff-respondent directing them to vacate a portion of property described along with the counter claim and to deliver possession. During  trial as many as 11 issues were framed by the trial court and upon issue nos. 2,3, 11 and 12 being decided, at the stage of judgement,  applicant moved an application (30-Ga) under Order 6 Rule 17 to amend the counter claim. The amendment sought was to amend relief 'A' to the counter claim by substituting "mandatory injunction" by "possession".

The courts below rejected the application in view of proviso to Order 6 Rule 17 holding that the amendment was sought at the stage of decision of the suit,  the impugned order would further note  that the applicant-defendant has already sought a relief for possession by way of mandatory injunction, therefore, the amendment is not required at this stage.  Further, no reason was assigned  as to why the amendment is being sought at the belated stage after trial  has concluded.

The submission of the learned counsel for the applicant is that the amendment could be sought at any stage of the proceedings, only relief clause is being sought to be amended  that would neither change the nature of the suit nor would  prejudice the  other side, therefore, it is sought to be urged that proviso would have no bearing in allowing the amendment.

In Vidyabai and other Vs. Padamlatha and another; 2009(2) SCC 409, the question  before the Supreme Court was " whether the pleadings can be directed to be amended after the  hearing of a case begins is the question involved in this appeal". The court was of the view that in proviso inserted to Order 6 Rule 17 of the Code was couched in a mandatory form, the court's jurisdiction to allow such an application is taken away unless condition precedent therefor  are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. The court relied upon Union of India Vs. Major Genral Madan Lal Yadav; 1996(4) SCC 127, the three Judge Bench held that "trial" means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in  accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial.

The ratio in Kailash Vs. Nankhu; 2005 (4) SCC 480 was reiterated stating that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence. 

By Act 46 of 1999, there was a sweeping amendment by which Rules 17 and 18 were wholly omitted so that an amendment itself was not permissible, although sometimes effort was made to rely on Section 148 for extension of time for any purpose. Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 17 by Act 22 of 2002 w.e.f 1 July 2002. It had a provision permitting amendment in the first part which said that the court may at any stage permit amendment as described therein. But it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial.  The Supreme Court in Salem Advocate Bar Association Vs. Union of India; 2005 (6) SCC 344 upheld the constitutional validity of the proviso.

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. 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, therefore, entire object of the amendment is  to stall filing of application  for amending  a pleading subsequent to the commencement of trial. Once the trial commences on  the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise plea, it is for the court to consider the same, therefore, it is not a complete bar nor shuts out entertaining of any later application. The reason for adding  proviso is to curtail delay and expedite hearing of cases.

"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 is clear that unless the party takes prompt steps, mere action cannot be a accepted and file a petition after the commencement of trial. (Vide. Chander Kanta Bansal Vs. Rajinder Singh Anand; AIR 2008 SC 2234).

In spite of long delay, if acceptable material/materials placed before the court show that the delay was beyond their control or diligence, it would be possible for the court to consider the same by compensating the other side by awarding cost.

In the facts of the present case, there is no whisper as to why the amendment is being sought at the belated stage. There is no assertion in the application that in spite due diligence the applicant could not have raised the matter before commencement of trial. The relief claimed in the counter claim which is sought to be amended reads as follows:

"that a decree for mandatory injunction be passed against the plaintiffs directing him to vacate the portion shown by letters A, B,C, D in the map attached with this counter claim and deliver its vacant possession to the defendants within the time given by the learned court failing which the same be done through the Agency of the Court".

The amendment only seeks that "possession" be substituted by "mandatory injunction", therefore, it is evident that practically there is no difference in the nature of relief being sought in respect of property which is subject matter of  suit, the court below, therefore, rightly held that purpose to amend at the stage of decision was undertaken by the defendant to delay the suit proceedings.

In this view of the matter, I find no illegality, infirmity, or jurisdictional error in the impugned order.

The petition being devoid of merit is accordingly dismissed.

No order as to costs.

Order Date :- 10.12.2015

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