Andhra Pradesh High Court - Amravati
Ideal College Of Arts And Science vs Medical Education Society on 27 June, 2022
Bench: Ninala Jayasurya
HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI
CIVIL REVISION PETITION No.291 OF 2022
Ideal College of Arts and Science,
through its Governing Body,
represented by its Secretary and Correspondent,
Samalkot, Kakinada, East Godavari District. ... Petitioner
Versus
Medical Education Society (Regn.No.15/1958),
Kakinada, rep. by its President, Kakinada. ... Respondent
DATE OF ORDER PRONOUNCED: 27-06-2022
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
Marked to Law Reporters/Journals.
3. Whether Their ladyship/Lordship wish Yes/No
to see the fair copy of the Judgment?
____________________
NAINALA JAYASURYA, J
2
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*THE HON'BLE SRI JUSTICE NINALA JAYASURYA
+ CIVIL REVISION PETITION No.291 of 2022
%Date : 27.06.2022
#Ideal College of Arts and Science,
through its Governing Body,
represented by its Secretary and Correspondent,
Samalkot, Kakinada, East Godavari District. ... Petitioner
Versus
$Medical Education Society (Regn.No.15/1958),
Kakinada, rep. by its President, Kakinada. ... Respondent
! Counsel for the Petitioner : Mr.Vedula Venkata Ramana,
Learned Senior Counsel
^ Counsel for the Respondent : Mr.K.Chidambaram
< GIST : --
> HEAD NOTE : --
? Cases referred : --
3
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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
CIVIL REVISION PETITION No.291 of 2022
Ideal College of Arts and Science,
through its Governing Body,
represented by its Secretary and Correspondent,
Samalkot, Kakinada, East Godavari District. ... Petitioner
Versus
Medical Education Society (Regn.No.15/1958),
Kakinada, rep. by its President, Kakinada. ... Respondent
Counsel for the Petitioner : Mr.Vedula Venkata Ramana,
Learned Senior Counsel
Counsel for the Respondent : Mr.K.Chidambaram
ORDER:
The present Revision Petition has been preferred against the Orders
dated 20.01.2022 in I.A.No.14 of 2022 in O.S.No.108 of 2015 on the file of
the Court of the IV Additional District Judge, Kakinada, East Godavari
District.
2. Heard Mr.Vedula Venkata Ramana, learned Senior Counsel for the
petitioner and Mr.K.Chidambaram, learned counsel for the respondent.
3. The petitioner herein is the defendant in the above referred suit.
The respondent/plaintiff-society filed the suit against the
petitioner/defendant-society seeking a decree in its favour and against the
petitioner/defendant-society; a) for physical possession of the plaint
schedule property after evicting the defendant therefrom; b) to award
past damages of Rs.46,00,000/- with interest thereon at 12% per annum
from the date of the suit till the date of realization; c) to award future
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damages at the rate of Rs.2,00,000/- per month from the date of the suit
till date of the delivery of vacant possession of the plaint schedule
property to the plaintiff; d) to award costs of the suit; and e) to grant
such other reliefs.
4. The case of the respondent/plaintiff-society as set out in the plaint
in brief, may be narrated for better appreciation of the issues.
5. The plaintiff-society is the owner of property popularly called as
"Simpson Building", the particulars of which are fully described in the
plaint schedule. At the request of the petitioner/defendant-society, it gave
license over the said property to the petitioner/defendant-society to run
colleges and later leased it out to the petitioner/defendant-society at an
annual rent of Rs.2,000/-. Subsequently, the rent was increased to
Rs.12,000/- per annum. Though the property is extensive, it was leased
out for nominal amount, as the objectives of the respondent-society and
the petitioner-society are similar. On 1st July, 1981, the respondent and
the petitioner came to an understanding that the lease is to be for a
period of 30 years. The petitioner/defendant entered into possession of
the plaint schedule property, as lessee, continued and began to run Ideal
College of Arts and Sciences. As the said lease came to an end by the end
of 30 years period by March, 2013, the petitioner/defendant has no right
to continue in possession of the plaint schedule property, and as the
respondent/plaintiff-society was contemplating to start Para-medical
institutions in the property in question, the petitioner/defendant-society
was requested to handover the property. However, the
petitioner/defendant addressed a letter dated 17.04.2013 to the
respondent/plaintiff enclosing a cheque dated 17.04.2013 for Rs.12,000/-
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towards the rent for the year 2012-2013 with a request to execute regular
lease deed for another period of 30 years. The respondent/plaintiff got
issued a reply dated 17.05.2013 stating inter alia that it is not prepared to
lease out the plaint schedule property and returned the cheque. The
petitioner/defendant then got issued notice dated 30.05.2013 stating that
the plaint schedule property comes under A.P. Buildings (Lease, Rent and
Eviction) Control Act, 1960, that it had spent Crores of Rupees on the
buildings constructed in the schedule property and that the
respondent/plaintiff has been promising to pay the said amounts from
time to time along with other claims.
6. Against the backdrop of the above stated position, the
respondent/plaintiff filed the suit on 26.03.2015, seeking the reliefs as
mentioned supra.
7. On 30.08.2015, the petitioner/defendant-society filed its written
statement inter alia stating that the suit as laid by the respondent/plaintiff-
society is not maintainable in Law. While admitting that the
petitioner/defendant is a tenant in possession of the property, it was
averred that the plaint schedule property is not correct, as part of the
same was acquired by the Government. Denying the statement that the
lease came to an end by the end of March, 2013 was absolutely false, it
was pleaded that as per the resolutions passed by the
respondent/plaintiff-society, the lease was extended from March, 2013
and a Registered Lease Deed has to be executed and that the
petitioner/defendant had written a letter on 17.04.2013 to the
plaintiff/respondent-society to extend the lease period. The
petitioner/defendant also pleaded that the said letter dated 17.04.2013
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and its reply notice dated 30.05.2013 may be read as part of the written
statement. A plea was also taken that the plaintiff suppressed the
resolutions passed from time to time, wherein it was mentioned that the
lease was extended in favour of the petitioner/defendant-society and a
separate lease has to be executed in its favour. The petitioner/defendant
sought dismissal of the suit by raising a further plea that the suit as laid
under the provisions of Transfer of Property Act is not maintainable and
the provisions of A.P. Buildings (Lease, Rent and Eviction) Control
Act, 1960 only applies.
8. The learned Trial Judge, on the basis of the above referred
pleadings formulated the issues. When the matter is coming up for cross
examination of P.W.2, the petitioner/defendant filed an application i.e.
I.A.No.14 of 2022 under Order VI, Rule 17 and Section 151 of CPC
seeking amendment of written statement by adding Para 9(a) after
Para 9 of the written statement, which reads thus:
"From 1972 onwards the plaintiff/petitioner society
gave license to the respondent/defendant society to run
the educational institution as Ideal College of Arts and
Science in the plaint schedule property and the said license
is not revoked by the plaintiff/petitioner society at any
point of time."
9. The respondent/plaintiff filed a counter opposing the amendment as
sought for by the petitioner/defendant. The learned Trial Judge after due
consideration of the matter through the impugned Order, dismissed the
said application. Hence, the present Revision Petition.
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10. The learned Senior Counsel while referring to the relevant
averments in the plaint inter alia submits that the respondent/plaintiff
gave license in respect of the suit schedule property to the
petitioner/defendant and the respondent/plaintiff‟s stand of oral lease is
strange as the parties to the suit are corporate entities. He submits that
no details of lease were furnished in the plaint nor a copy of lease deed
was filed. He submits that as the petitioner/defendant was placed in
possession of the property pursuant to the license granted to it by the
respondent/plaintiff and the same has not been revoked, the necessity to
file application seeking amendment of written statement had arisen.
He submits that the proposed amendment would not, in any, manner
amount to introducing of a new case, nor the same would prejudice the
respondent/plaintiff, but would enable the learned Trial Court to render
complete justice to the parties. He submits that the Law relating to the
pleadings applies differently to the plaintiff and defendants - while plaintiff
as the author of the suit has no much leverage and in so far as
amendment of written statement is concerned, it should be liberally
allowed. Stating that the proviso to Order VI, Rule 17 of CPC has to be
applied with reference to the facts of each case, he also submits that non-
revocation of license is not a new plea and in the absence of revocation of
license, the suit claim is not maintainable. He further submits when an
amendment was sought on legal ground, the same deserves to be
allowed. He submits that though a limited relief was sought for by way of
the present amendment application, the learned Trial Court misapplied the
proviso to Order VI, Rule 17 of CPC. Placing reliance on the Judgment of
the Hon‟ble Supreme Court in Rajesh Kumar Aggarwal & Ors vs K.K.
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Modi & Ors1, the learned Senior Counsel emphasizes that the
amendment sought for is necessary for determining the real question in
controversy between the parties, but the learned Trial Judge failed to
consider the matter in the correct perspective and committed a serious
error in rejecting the application for amendment of written statement and
therefore, the Order under Revision deserves to be interfered with by this
Court in exercise of powers under Article 227 of the Constitution of India.
Making the said submissions, the learned Senior Counsel seeks to allow
the Revision Petition.
11. The learned counsel for the respondent/plaintiff while refuting the
contentions of the learned Senior Counsel, inter alia submits that the
petitioner/defendant-society was inducted as licensee in the suit schedule
property, but later a lease was entered into for a period of 30 years as per
the understanding between the parties, and even as per the admitted case
of the petitioner/defendant-society, as is evident from the written
statement. While referring to Para 6 of the written statement, he contends
that if the amendment sought for is allowed, it amounts to permission to
the petitioner/defendant-society to recile from its earlier stand and to take
a new defense. He further contends that the application in question was
filed at a belated stage and that in the affidavit filed in support of the
same, no plea with regard to due diligence on the part of the
petitioner/defendant-society was taken and unless the Court is satisfied
that despite due diligence an application seeking amendment of pleadings
could not be filed before commencement of Trial as envisaged in proviso
to Order 6, Rule 17 of CPC, no amendment can be allowed. In support of
1 (2006)4 SCC 385
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his contentions, the learned counsel places reliance on the decisions in
Bhamidimarri Vijaya Lakshmi vs. M.Uma Lakshmi2, Ankam
Govindamma vs. Syed Shafeeullah3, M.S. Gnanambika vs.
V.Subramanyam4 and Nallala Bhaskar Reddy vs. Nallala
Mangamma and others5. He also submits that the contentions with
regard to the lease deed and maintainability of the suit etc. are not
germane for consideration in the present Revision Petition. The learned
counsel also submits that the application in question was filed only with a
view to drag on the proceedings, there are no merits in the present
Revision Petition and therefore the same may be dismissed.
12. In reply to the said arguments, the learned Senior Counsel submits
that it is permissible for the petitioner/defendant to take
alternative/inconsistent pleas as defense. He also submits that the learned
Trial Court has not applied its mind in deciding the issue in real
controversy and not recorded any finding with regard to due diligence. In
any event, the learned counsel submits that the learned Trial Court should
have adopted a liberal view, as per the settled Law instead of pre-judging
the matter.
13. On a due consideration of the contentions advanced by both the
learned counsel and perusing the material on record, the point that falls
for consideration by this Court is as to "Whether the Order under Revision
rejecting amendment of written statement is not sustainable and warrants
interference by this Court?"
2 2018 (1) ALT 323 (S.B.)
3 2018 (4) ALT 421 (S.B.)
4 2019 (5) ALT 203 (S.B.)
5 2021 (1) ALT 226 (S.B.)
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14. At the outset, it may be noted that as submitted by the learned
Senior Counsel, the Courts should be liberal in allowing the prayer for
amendment of pleadings, unless serious injustice or irreparable loss is
caused to the other side. It is also true that the Courts should be more
liberal in allowing amendments of written statements than of plaints.
However, by virtue of proviso to Rule 17 of Order VI of CPC, no
application seeking amendment shall be allowed 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 plea before the
commencement of trial.
15. At this juncture, it may be appropriate to extract Order VI, Rule 17
of CPC for ready reference.
"Or. 6 R. 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."
16. The Hon‟ble Supreme Court in M.Revanna vs. Anjanamma
(Dead) by L.Rs6 was dealing with a matter, wherein the Trial Court
allowed an application filed by the plaintiff under Order VI, Rule 17 of
CPC. On challenge, the High Court set aside the same and the matter was
carried by way of appeal to the Hon‟ble Supreme Court by the
unsuccessful Plaintiff. While confirming the Order of the High Court at
Para 7 of the said Judgment, the Hon‟ble Supreme Court held as follows:-
6 (2019) 4 SCC 332
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"7. Leave to amend may be refused if it introduces a totally different,
new and inconsistent case, or challenges the fundamental character of
the suit. The proviso to Order VI Rule 17 of the CPC virtually prevents
an application for amendment of pleadings from being 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 the trial. The proviso, to an
extent, curtails absolute discretion to allow amendment at any stage.
Therefore, the burden is on the person who seeks an amendment
after commencement of the trial to show that in spite of due diligence,
such an amendment could not have been sought earlier."
Thus, the burden is on a party to plead and prove that despite due
diligence, the amendment could not be sought for before commencement
of the trial.
17. In M.S. Gnanambika‟s case referred to supra, an Order of the
Learned Trial Judge dismissing the application under Order VI, Rule 17 of
CPC seeking amendment of written statement was called in question. A
learned Judge of this Court, in the Revision Petition, upheld the Order of
the Trial Court inter alia holding that the petitioner therein failed to satisfy
the Court with regard to exercise of due diligence, as contemplated under
proviso to Order VI, Rule 17 of CPC. The relevant portion of the Judgment
may be extracted hereunder:-
"16. But, the principle laid down in Baldev Singh v. Manohar Singh (referred supra)
was considered by the Full Bench of the Supreme Court in "Kailash v. Nankhu3",
wherein, it was held that, when the issues were framed, the trial is deemed to have
been commenced and the same principle is reiterated in Vidyabai & Ors v.
Padmalatha & Anr, (2009) 2 SCC 409.
17. In view of the law laid down by the Apex Court in the above judgments, when
issues were framed and the suit is posted for trial, the trial is deemed to have been
commenced. Therefore the principle laid down in Baldev Singh v. Manohar Singh
(referred supra) is no more good law, in view of the judgment of the Apex Court in
Kailash v. Nankhu (referred supra).
18. In J. Samuel v. Gattu Mahesh, (2012) 2 SCC 300, the Supreme Court laid down
certain tests as to what is 'due diligence' with reference to Order VI Rule 17 C.P.C
and proviso thereto and held as follows:
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"13. Due diligence is the idea that reasonable investigation is necessary before
certain kinds of relief are requested. Due 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.
14. 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."
19. The word "due diligence" is not exactly defined by the Act, but in Bharat
Petroleum Corporation Ltd. v. Precious Finance Investment Pvt. Ltd., 2006 (6)
BomCR 510, the Apex Court held as follows:
"The Dictionary meaning of the expression "due diligence" as given in the
Blacks Law Dictionary, Sixth Edition, 1990 means "Such a measure of
prudence, activity or assiduity, as is properly to be expected from, and
ordinarily exercised by, a reasonable and prudent man under the particular
circumstances; not measured by any absolute standard, but depending on the
relative facts of the special case." Similarly the Law Lexicon by P. Ramanatha
Aiyer, Second Edition (Reprint) 2001 explains "due diligence" to mean such
watchful caution and foresight as the circumstances of the particular case
demands. While examining the explanation offered or cause shown as to why
in spite of due diligence a party could not have raised the matter before
commencement of trial, the Court may have to see the circumstances in
which the party is seeking amendment. In short the explanation as to "due
diligence" depends upon the particular circumstances and the relative facts of
each case to reach a conclusion one way or the other."
20. In Chander Kanta Bansal v. Rajinder Singh Anand, (2008) 5 SCC 117, taking
note of the object and purpose of Amendment Act 22 of 2002, the Supreme
Court held that, the entire object of the said amendment is to stall filing of
applications for amending a pleading subsequent to the commencement of trial,
to avoid surprises and to ensure that one party has sufficient knowledge of the
case of the other party.
21. In view of the tests laid down by the Apex Court in the judgments referred
supra as to what amounts to exercise of 'due diligence', the petitioner in the
present case did not aver anything in the entire affidavit as to how she exercised
due diligence and despite exercise of due diligence, she could not bring those
facts on record before commencement of trial. When the petitioner did not raise
such plea in the affidavit filed along with this petition, the question of
substantiating the same does not arise and in fact, both the parties went into
trial, despite denial of title of this petitioner by the respondents about 10 years
ago. Suggestions were also put to the witnesses denying the title of the
petitioner. But, they did not open their eyes and slept over for a considerable
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period of time and when defendants witnesses are to be cross- examined, the
petitioner realized the mistake she committed in seeking relief and filed petition
under Order VI Rule 17 C.P.C to raise a plea that the document sued upon is
fabricated, though a specific plea is raised that the document is created one,
without explaining as to how she exercised due diligence and failed to take such
steps.
22. If, the tests laid down in the two judgments referred supra, are applied to
the present facts of the case, this petitioner as an ordinary prudent woman
failed to take necessary steps before commencement of trial. Failure to take
steps at an earlier stage without exercise of due diligence, disentitled her to
claim such relief. Therefore, on this ground alone, this petition is liable to be
dismissed.
23. Unless the petitioner satisfied the Court that, despite exercise of due
diligence, she could not have brought the facts on record before commencement
of trial. The amendment cannot be allowed as a matter of routine.
24. Further, in "Mohinder Kumar Mehra v. Roop Rani Mehra & Ors8",
it was held that, the proviso to Order VI, Rule 17 prohibits the entertainment of
an amendment application after the commencement of the trial with the sole
object that once the parties proceed with the leading of evidence then ordinarily
no new pleading should be permitted to be introduced."
18. In Bhamidimarri Vijaya Lakshmi‟s case referred to supra, the
Order of the Trial Court dismissing the application seeking amendment of
plaint under Order VI, Rule 17 of CPC was under challenge. The learned
Judge of the erstwhile Common High Court for the State of Telangana and
State of Andhra Pradesh at Hyderabad confirmed the Order of dismissal,
however for the reasons independently assigned by him. The learned
Judge while dismissing the Revision Petition has also taken note that the
affidavit did not explain the necessity of seeking amendment of the prayer
and that even the conduct of the petitioner does not show that he had
exercised due diligence in filing the application for amendment.
At Para 8 of the Judgment, the learned Judge held as follows:-
"8. Be that as it may, the point that needs to be considered is whether
the petitioner is entitled for amendment of the plaint. Under Order VI
Rule 17 CPC, 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
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necessary for the purpose of determining the real questions in
controversy between the parties. The proviso to the said Rule, however,
bars such amendment 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 the trial. Under this
provision, a party seeking amendment has to necessarily satisfy two
requirements, namely, (i) that the proposed amendment is necessary for
the purpose of determining the real question in controversy between the
parties and, (ii) if the trial has been commenced the party must satisfy
the Court that in spite of his exercising due diligence he could not file an
application for amendment before the commencement of the trial. The
affidavit filed in support of I.A. No.10 of 2017 is silent on both the
aforementioned aspects. It is not explained therein as to how the
proposed amendment is necessary for determining the real questions in
controversy."
19. Ankam Govindamma referred to supra is a case, wherein another
learned Judge of the erstwhile Common High Court for the State of
Telangana and State of Andhra Pradesh at Hyderabad upheld the Order of
the learned Trial Judge dismissing the application filed by the
petitioner/defendant under Order VI, Rule 17 CPC seeking amendment of
written statement. In the said case, the application seeking amendment of
written statement was filed 6 years after filing of the written statement.
The learned Judge after referring to the Judgment of the Hon‟ble Supreme
Court in Salem Advocates Bar Association, Tamil Nadu vs. Union of
India7 was not inclined to interfere with the Order of the Trial Judge. The
relevant portion of the decision reads as follows:-
"Para 26: Order 6 Rule 17 of the Code deals with amendment of
pleadings. By Amendment Act 46 of 1999, this provision was deleted. It
has again been restored by Amendment Act 22 of 2002, but with an
added proviso to prevent application for amendment being 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 some extent, curtails
absolute discretion to allow amendment at any stage. Now, if application
7 AIR 2005 SC 3353
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is filed after commencement of trial, it has to be shown that in spite of
due diligence, such amendment could not have been sought earlier. The
object is to prevent frivolous applications which are filed to delay the
trial. There is no illegality in the provision."
So with the amendment of Order VI Rule 17 CPC and
introduction of proviso, the petitioner seeking amendment after
commencement of trial shall, convince the Court that inspite of due
diligence, he could not have raised the matter before commencement of
trial. So in my considered opinion, the yardstick for considering the
amendment petition filed after commencement of trial is not only
whether a separate suit on same facts and for same relief is not time
barred as laid down in Sampath Kumar2, but also whether the petitioner
could show plausible cause that inspite of due diligence, he could not
raise the matter before commencement of the trial. So to sum up, the
amendment petition filed after commencement of trial no doubt can be
considered, provided, the petitioner could establish that inspite of
exercising due diligence he could not file the petition before
commencement of the trial and a separate suit on same cause of action
for the same relief could be maintainable. In the instant case, as already
observed, the petitioner could not show any plausible cause for the
inordinate delay. Hence the petition merits no consideration."
20. A conspectus of the above referred Case Law would go to show that
exercise of due diligence is a „Sine qua non' for considering the
application for the amendment of pleadings, after commencement of Trial
and the Court has to come to a conclusion that even after exercise of said
due diligence, the party could not have raised the matter before
commencement of trial.
21. In the present case, the trial had already commenced P.W.1 was
examined. However, his evidence was eschewed, as he was reportedly not
maintaining good health. Thereafter, the evidence of P.W.2 was adduced.
When the matter is posted for his cross examination, the application in
question was filed. In such circumstances, proviso to Order VI, Rule 17 of
CPC comes into play and unless the Court comes to a conclusion that in
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spite of due diligence, the party could not have raised the matter before
commencement of trial, the amendment sought for cannot be allowed. It
may be recalled here that the Hon‟ble Supreme Court in M.Revanna‟s
case referred to supra held that the burden is on the person seeking
amendment after commencement of trial to show due diligence on his
part as contemplated under proviso to Order VI, Rule 17 of CPC.
22. Applying the above stated legal principles, it is to be tested as to
whether the petitioner/defendant in the present case had satisfied the
requirement in terms of proviso to Order VI, Rule 17 of CPC.
23. Admittedly, the respondent herein filed the suit in the year 2015
i.e., on 26.03.2015. Within a short time, the petitioner/defendant filed
written statement on 30.08.2015. After a lapse of more than 6 years, the
application in question was filed. The relevant portion of the affidavit filed
in support of the said I.A may be extracted hereunder for ready
reference:
"3. It is respectfully submitted that, the plaintiff filed the suit against
the respondent society for evicting and other reliefs. It is submitted
that in Para-4 of the plaint, it is specifically mentioned that the plaintiff
society at the request of the defendant society gave license over the
said property to the defendant to run colleges and later leased out the
plaint schedule property to the defendant society at an annual rent of
Rs.2,000/-.
4. It is submitted that, those allegations were not denied in the
written statement filed by me. It is respectfully submitted that after
going through the plaint, the plea about the license given by the
plaintiff/petitioner to the respondent society did not take at the time
of filing the written statement. Without that plea the cross
examination of PW1 cannot be conducted. Therefore it is necessary to
amend the written statement filed by me by adding Para 9(a) after
Para 9 in the written statement as "From 1972 onwards the
plaintiff/petitioner society gave license to the respondent/defendant
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society to run the educational institution as ideal College of Arts and
Science in the plaint schedule property and the said license is not
revoked by the plaintiff/petitioner society at any point of time.
Therefore, it is necessary to amend the written statement by adding
Para 9(a) for the purpose of determining the real question in
controversy between the petitioners and respondents.
5. Therefore, I pray the Hon‟ble Court may be pleased to order for
Judgment of Written Statement by adding Para 9(a) after Para 9 of
the Written Statement and consequently amend the written statement
so as to have full and fair trial in respect of the suit in the interests of
the justice. Else I will be put to serious and irreparable loss."
24. Thus, it is clear, plea regarding exercise of due diligence and
necessity of seeking amendment of written statement are conspicuously
absent. Under such circumstances, the question of exercising due
diligence or discharge of burden on the part of petitioner/defendant to the
satisfaction or conclusion of the Court would not arise.
25. In the light of the above legal and factual position, this Court has
no hesitation to hold that the petitioner/defendant-society failed to satisfy
that it had exercised due diligence as contemplated under proviso to Order
VI, Rule 17 of CPC. Therefore permission for amendment of written
statement as sought for deserves no consideration and this Court is not
inclined to accept the submissions made by the learned Senior Counsel in
this regard.
26. Though the reasoning of the learned Trial Judge for rejecting the
application is on a different footing and not very sound, the material on
record and the consideration of the same by this Court would go to show
that there is no exercise of due diligence by the petitioner and the Order
dismissing the application seeking amendment is sustainable, even
otherwise in view of the reasons assigned by this Court supra.
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27. In Rajesh Kumar Aggarwal‟s case on which the learned Senior
Counsel places reliance, the Hon‟ble Supreme Court held that it is the
primary duty of the Court to decide whether such an amendment is
necessary to decide the real dispute between the parties. In the present
case, the respondent/plaintiff had set up his case inter alia with reference
to lease between the parties, which was allegedly came to an end by
March, 2013. In Para 6 of the written statement, the petitioner/defendant
categorically averred as follows:-
"6. The allegations in the Plaint that the lease came to an end
by end of March 2013 is absolutely false. The letter
dt.17.04.2013 and the reply notice dt.30.05.2013 may be read
as part of this Written Statement. It is humbly submit that as
per the resolutions passed by the Plaintiff‟s Society the lease
was extended from March 2013 and the Plaintiff has to execute
a Registered lease deed in favour of the Plaintiff‟s Society as per
the resolutions passed by the Plaintiff‟s Society. The Plaintiff‟s
Society having full knowledge of the resolutions passed by the
society suppressed the said resolution and filed the suit with
false allegations as on 17.04.2013. The defendant has written a
letter that the Plaintiff‟s Society has to extend the lease period."
In Para 9 in was further pleaded as follows:-
"9. The Plaintiff suppressed the resolution passed from time to
time wherein it is clearly mentioned that the lease was extended
in favour of the Defendant Society and a separate lease has to
be executed in favour of the Defendant‟s Society. Purposefully,
the Plaintiff filed the suit without filing the resolution books
before the Hon‟ble Court."
28. Thus, the pleadings are clear and it is for the respondent/plaintiff to
prove his case with reference to the lease allegedly expired after
March, 2013. In such circumstances, the amendment sought for is not
necessary for determining the real issue in controversy, and even
NJS, J
crp_291_2022
assuming that the same is necessary, unless the petitioner/defendant
satisfies that in spite of due diligence, he could not have raised the matter
before commencement of trial, which he failed to establish as opined
supra, the application for amendment, as sought for cannot be allowed.
29. For the foregoing reasons, this Court is of the considered opinion
that the impugned Order rejecting the application seeking amendment of
Written Statement need not be interfered with as the same does not
suffer any irregularity or perversity.
30. The Civil Revision Petition is accordingly, dismissed. No Order
as to costs.
As a sequel, miscellaneous applications, if any, pending shall stand
closed.
__________________
NINALA JAYASURYA, J
Date: 27.06.2022
IS
NJS, J
crp_291_2022
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
Civil Revision Petition No.291 of 2022
Date: 27.06.2022
IS
