Smt. Maya Devi vs Shri Mitthoo Lal & 3 Others
2017 Latest Caselaw 1754 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 2
 
Case :- CIVIL REVISION No. - 166 of 2017
 
Revisionist :- Smt. Maya Devi
 
Opposite Party :- Shri Mitthoo Lal & 3 Others
 
Counsel for Revisionist :- Atul Kumar Upadhyaya
 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri Atul Kumar Upadhyaya, learned counsel for the revisionist/appellant/plaintiff.

2. This revision under Section 115 CPC has been filed praying to quash the order dated 18.04.2017 in Civil Revision No. 02 of 2016 (Smt. Maya Devi Vs. Shri Mitthoo Lal and others) passed by the Additional District Judge/ Fast Track Court No. 1, District Jalaun at Orai, whereby, the amendment application being Paper No. 28-C filed by the revisionist herein was rejected and the case was fixed for argument for 29.04.2017.

3. Submission of learned counsel for the revisionist is that the revisionist has sought merely addition of the word "Nullity" between the words "Aagyapti Evam Nirast" which has been arbitrarily and illegally rejected by the court below where the appeal of the revisionist / plaintiff is pending. Further submission that the amendment sought was quite legal and therefore, rejection of the amendment application filed at the appellate stage is wholly unsustainable.

4. I have carefully considered the submissions of learned counsel for the revisionist and perused the record.

5. Briefly stated facts of the present case are that Original Suit No. 45 of 1987 (Mitthoo Lal Vs. Maya Devi) was filed which was decreed on merit by detailed judgment and decree dated 04.12.1993. Admittedly, an Execution Case No. 05 of 2003 was instituted on 11.02.2003 in which notices were issued to the revisionist herein which was duly served on her on 15.03.2003 and she filed her objection on 25.07.2003. Subsequently, the revisionist herein filed Original Suit No. 82 of 2007 (Smt. Maya Devi Vs. Mitthoo Lal (deceased) and others) on 25.05.2007 in the court of Additional Civil Judge (Junior Division), Konch, District Jalaun praying to set aside the judgment and decree of the Original Suit No. 45 of 1987 since the suit was to be decreed on the basis of compromise but without considering the compromise, the court passed the judgment and decree dated 04.12.1993. Learned Additional Civil Judge (Junior Division), Konch, District Jalaun considered the submissions of the parties and the record and dismissed the O.S. No. 82 of 2007 filed by the revisionist herein. Aggrieved with the dismissal of the suit by judgement dated 05.12.2015 passed by the Additional Civil Judge (Junior Division), Konch, District Jalaun, the revisionist herein filed First Appeal No. 02 of 2016 before the District Judge, Jalaun at Orai. While the appeal was at the argument stage, the revisionist herein filed an amendment application dated 29.03.2017 in Appeal No. 02 of 2016 praying that the word 'Nullity" may be permitted to be added between the words "Aagyapti Evam Nirast". This application has been rejected by the impugned order dated 18.04.2017 passed by the Additional District Judge/ Fast Track Court-I, Jalaun at Orai. Aggrieved with this order dated 18.04.2017 the revisionist herein has filed the present civil revision.

6. In the impugned order the court below has observed that the revisionist has not offered any explanation as to why she could not file amendment application during pendency of the original Suit No. 82 of 2007. The revisionist has sought to add the word "Nullity" between the aforesaid two words which does not stand appropriate.

7. In the amendment application the revisionist herein has not stated that why inspite of due diligence she could not raise the matter during pendency of the suit. The amendment application of the revisionist is reproduced below:

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Object of the proviso to Order VI Rule 17 C.P.C.:

8. In order to find out whether the application of the defendant under Order VI Rule 17 for amendment of written statement was bonafide and sustainable at the appellate stage of the second original suit stage or not, it is useful to refer to the relevant provisions of Order 6 Rule 17 C.P.C. as under:

"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 and on such terms as may be just, and all such amendments shall be made as may be necessary for the 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."

9. This Rule was omitted by the Code of Civil Procedure (Amendment) Act, 1999. However, before the enforcement of the Code of Civil Procedure (Amendment) Act, 1999, the original rule was substituted and restored with an additional proviso. The proviso limits the power to allow amendment after the commencement of trial but grants discretion to the court to allow amendment if it feels that the party could not have raised the matter before the commencement of trial in spite of due diligence. It is true that the power to allow amendment should be liberally exercised. The liberal principles which guide the exercise of discretion in allowing the amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be granted, while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon the opposite party under pretence of amendment.

10. The proviso to Order VI Rule 17 C.P.C. specifically provides that no application for amendment shall be allowed after the trial is commenced unless the court comes to the conclusion that inspite of due diligence the party could not have raised the matter before the commencement of trial. Facts of the case shows that O.S. No. 82 of 2007 was decided by the court of Additional Civil Judge (Junior Division), Konch, District Jalaun by judgment dated 05.12.2015 and the suit of the revisionist was dismissed. It is during the pendency of Appeal No. 02 of 2016 filed by the revisionist that the revisionist has moved the aforesaid amendment application. In the amendment application, the revisionist has not stated that even after due diligence why she could not raise the matter in the suit proceedings. The word "due diligence" means reasonable diligence. It means such diligence as a prudent man would exercise in the conduct of his own affairs. The amendment application of the revisionist herein was rejected by the appellate court, inasmuch as, the revisionist had failed to satisfy the condition prescribed in the proviso to Order VI Rule 17 C.P.C. That apart I do not find any illegality in the observation made in the impugned order refusing to permit to the word "Nullity" in the plaint by amendment between the words "Aagyapti Evam Nirast".

11. In the case of Chander Kanta Bansal Vs. Rajinder Singh Anand1 Hon'ble Supreme Court considered the meaning of the word "due diligence" used in the proviso to Order VI Rule 17 C.P.C. and held as under:

"15. As discussed above, though first part of Rule 17 makes it clear that amendment of pleadings is permitted at any stage of the proceeding, the proviso imposes certain restrictions. It makes it clear that after the commencement of trial, no application for amendment shall be allowed. 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.

16. The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (Eighth Edition), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "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. According to Words and 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.

17. It is clear that unless the party takes prompt steps, mere action cannot be accepted and 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 and till the death of her first son Sunit Gupta, Chartered Accountant, had not taken any step 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.

18. As rightly referred to by the High Court in Union of India Vs. Pramod Gupta2 this Court cautioned that delay and laches on the part of the parties to the proceedings would also be a relevant factor for allowing or disallowing an application for amendment of the pleadings."

(Emphasys supplied by me)

12. In the case of J. Samuel & others Vs. Gattu Mhesh & others3, Hon'ble Supreme Court explained the scope of the words "due diligence" used in proviso to Order VI Rule 17 and held as under:

"19. 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.

20. 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.

21. In the given facts, there is a clear lack of `due diligence' and the mistake committed certainly does not come within the preview of a typographical error. The term typographical error is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code.

22. The claim of typographical error/mistake is baseless and cannot be accepted. In fact, had the person who prepared the plaint, signed and verified the plaint showed some attention, this omission could have been noticed and rectified there itself. In such circumstances, it cannot be construed that due diligence was adhered to and in any event, omission of mandatory requirement running into 3 to 4 sentences cannot be a typographical error as claimed by the plaintiffs. All these aspects have been rightly considered and concluded by the trial court and the High Court has committed an error in accepting the explanation that it was a typographical error to mention and it was an accidental slip.

(Emphasys supplied by me)

13. In the present set of facts it is clear that there is lack of "due diligence" in view of the brief facts noted and the discussions made in para 5, 7 and 10 above. Perusal of the amendment application shows that the revisionist could not establish that in spite of due diligence, she could not rais the matter before the commencement of the trial.

14. Under the circumstances, no material was available before the appellate court to exercise the discretion to allow the amendment application. Consequently, the appellate court has not committed any error of law to reject the amendment application 28-C by the impugned order dated 28.04.2017 passed in Civil Appeal No. 02 of 2016.

15. In view of the aforesaid, I do not find any infirmity in the impugned order. Consequently, the revision is dismissed.

Order Date :- 3.7.2017

IrfanUddin