Dr. Amitabh Kumar Gupta vs Awadh Bihari Nigam
2023 Latest Caselaw 15123 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Neutral Citation No. - 2023:AHC:104335
 
Court No. - 2
 
Case :- S.C.C. REVISION No. - 58 of 2023
 
Revisionist :- Dr. Amitabh Kumar Gupta
 
Opposite Party :- Awadh Bihari Nigam
 
Counsel for Revisionist :- Manish Tandon,Mohd. Naushad Siddiqui
 
Counsel for Opposite Party :- J.P. Singh
 

 
Hon'ble Neeraj Tiwari,J.

1. Mr. Narendra Mohan, Advocate has filed Vakalatnama on behalf of opposite party, which is taken on record.

2. Heard Sri Manish Tandon, leaned counsel for the revisionist and Sri Narendra Mohan, learned counsel for the opposite party.

3. Present revision has been filed for challenging the order dated 27.3.2023 passed by the Additional District Judge, Court No.13, Kanpur Nagar in S.C.C. Suit No. 44 of 2017.

4. Since only legal question is involved, therefore, with the consent of the parties, without inviting for affidavits, the matter is being decided at the admission stage itself.

5. Learned counsel for the revisionist submitted that earlier plaintiff-opposite party has instituted the SCC Suit No. 44 of 2017 upon which written submission has been filed. Thereafter, point of determination has also been framed. He next submitted that both the parties i.e. plaintiff and defendant have filed their witnesses through affidavit and case is fixed for final hearing. At the time of final argument, amendment application was filed under Order VI Rule 17 of CPC read with 151 IPC only on the ground of change of new counsel and after engagement of new counsel, it was found that certain relevant facts was not taken into consideration. He also submitted that since beginning, it is the case of respondent-plaintiff that provision of U.P. Act No. 13 of 1972 shall not be applicable as rent of building in question is more than 2,000/-. Now on facts, respondent-plaintiff is coming to the fact that building is newly constructed, therefore, U.P. Act No.13 of 1972 would not be applicable. He firmly submitted that it is pure question of fact and plaintiff respondent has full knowledge about the same since the date of filing of suit, therefore, at the stage of final argument without explanation of due diligence, such amendment application may not be allowed. He further submitted that ground so taken about the change of new counsel is not acceptable, therefore, order is bad and liable to be set aside. In support of his contention, he has placed reliance upon the judgment of this Court in the matter of Hari Shanker and 5 others vs. Bhagwati Prasad Mishra reported in 2014 (0) Supreme (All) 3127 and Shri Firoz Uddin and 4 others vs. Shri Anwar Uddin passed in Matters Under Article 227 No. 5213 of 2013 decided on 8.5.2023.

6. Mr. Krishna Mohan, learned counsel for the opposite party submitted as earlier counsel has not been pointed out the relevant fact only after engagement of new counsel, he found such relevant facts, therefore, he has filed amendment application at this stage, therefore, it cannot be dismissed on the ground of due diligence.

7. I have considered the rival submissions advanced by the learned counsel for the parties and perused the Order 6 Rule 17 of CPC as well as impugned order. In the application filed under Order 6 Rule 17 of CPC, the only ground taken is that after engagement of new counsel, he has pointed out certain relevant facts, which was not taken into consideration except this nothing has been stated in the amendment application.

8. To appreciate the controversy, Order VI Rule 17 of CPC is being quoted hereinbelow;

"17. Amendment of pleadings.-The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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. Order VI Rule 17 of CPC clearly provides that in case of amendment after commencement of trial, due diligence is required to be seen, but in the present case except the change of counsel, nothing has been stated. About the change of counsel or fault on the part of counsel has also been considered by this Court in the matter of Hari Shanker (Supra). Relevant paragraph of the same is quoted hereinbelow:-

"14. Supreme Court again in J. Samuel v. Gattu Mahesh, (2012) 2 SCC 300, held that 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 it 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 given facts, there is a clear lack of "due diligen not search out the fact, which is to be amended in written statement. Therefore, the condition of due diligence could not be satisfied. Law is very ce" and the mistake committed certainly does not come within the preview of a typographical error. Similar view was taken in Vidyabai Vs. Padma Latha, (2009) 2 SCC 409, Sushil Kumar Jain Vs. Manoj Kumar, (2009) 14 SCC 38 and Abdul Rehman Vs. Mohd. Ruldu, (2012) 11 SCC 341.

15. The written statement was drafted by an advocate after reading the plaint. After legal advice, it cannot be said that in exercise of "due diligence" the fact sought to be brought in the pleading by way of amendment was not in the knowledge of the defendant. A distinction has to be drawn between 'due diligence' and 'negligence'. The case of the defendants falls in the category of 'negligence' and not 'due diligence'. Trial Court rightly rejected the amendment application, as Proviso to Order VI Rule 17 C.P.C., now castes a rider on the power of the Court in allowing amendment application."

10. Again the similar issue was considered by this Court in the matter of Shri Firoz Uddin (supra). Relevant paragraph of the said judgment is quoted hereinbelow:-

"20. So far as present case is concerned, there is no dispute on the point that except the engagement of new counsel, nothing has been stated in amendment application even after sincere efforts, they could not search out the fact, which is to be amended in written statement. Therefore, the condition of due diligence could not be satisfied. Law is very much settled that change of counsel cannot be a ground for filing amendment. Therefore, no interference is required in the impugned order dated 11.04.2023."

11. This Court is of the firm view that putting new facts on record due to engagement/change of new counsel, fault on the part of counsel or any other reason attributed to counsel cannot be ground for filing of amendment application and allow the same, which was filed after commencement of trial. In fact, in light of Order VI Rule 17 of CPC, parameters of due diligence cannot be met out by making allegation on earlier counsel and giving credit to new counsel to search out the certain new facts during the preparation of the case. Therefore, any such amendment application placed upon the efforts or mistake on the part of counsel cannot be entertained and allowed.

12. The issue of due diligence is necessary part, which is required to be considered by the Court. Same was very well considered by this Court in the matter of Shri Firoz Uddin (Supra). Relevant paragraph of the said judgment is quoted hereinbelow:-

"18. From the perusal of Order VI Rule 17 CPC, it is apparently clear that there is no discrimination for filing amendment application either for plaint or written statement and proviso of due diligence is very much applicable in both the cases amendment is filed after commencement of trial. In fact, it is beneficial legislation enabling the parties to bring the some relevant facts on record, if it was not available at the time of filing of plaint or written statement even after commencement of trial. Therefore, a condition of due diligence has also been made, which has to be complied with, otherwise this provision may be misused to delay the proceeding. Therefore, it would be equally applicable for plaint and written statement.

19. So far as judgements referred herein above are concerned, those are also of the same view. There is no doubt that about the facts mentioned in amendment application, Court should have been more liberal while considering the amendment application in written statement, but at the same time Court cannot ignore the proviso of due diligence otherwise provision would have been misused. Therefore, Courts were conscious while interpreting the provision of Order VI Rule 17 CPC and no liberty is given to either of the parties to skip away with the condition of due diligence. Courts have taken a categorical view that either it is a case of amendment in plaint or written statement, it is necessary to fulfill the requirement of due diligence as provided in Order VI Rule 17 CPC."

13. So far as due diligence as referred in Order VI Rule 17 of CPC is concerned, it is necessary requirement while allowing the amendment application after commencement of trial. In the present case, there is no dispute on the point that amendment application was filed at the stage of final hearing, therefore, while allowing the application, it is necessary requirement to see as to whether due diligence was made by the applicant for the fact, which is brought on record by filing amendment application and failure of that, amendment application cannot be allowed. In the impugned order, SCC Court has not considered this fact that only ground taken for filling amendment application is mistake on the part of earlier counsel without considering the requirement of due diligence on the part of plaintiff-opposite party. This is also mandate of this Court in the matter of Shri Firoz Uddin (Supra).

14. In the present case, nothing has been stated about any due deligence made by the plaintiff-opposite party to bring the facts on record except the engagement of new counsel, who has searched out the new facts.

15. Therefore, under such facts and circumstances as well as law laid down by this Court, impugned order dated 27.3.2023 passed by learned Additional District Judge, Court No.13, Kanpur Nagar is hereby quashed and revision is allowed. No order as to costs.

Order Date :- 15.5.2023

Junaid