Kishor Raghunath Pande vs Narendra Durlabhji Shah
2011 Latest Caselaw 209 Bom

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          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
                     BENCH AT AURANGABAD




                                                              
               WRIT PETITION NO. 3491 OF 2011




                                      
     1.   Kishor Raghunath Pande,
          Age: 51 years, Occ: Business,

     2.   Vijaya Raghunath Pande,




                                     
          Age: 42 years, Occ: Business,

          Both R/o. Plot No.46, Ganeshwadi,
          Near Ramdeo Baba Mandir,




                            
          Taluka & Dist. Jalgaon.        ...PETITIONERS 
                  
            VERSUS             

     Narendra Durlabhji Shah,
     Age: 58 years, Occ: Business,
                 
     Partner of Mahendra Trading
     Corporation, R/o. 54,
     Bhawani Peth, Jalgaon-425 001
     Tal.& District - Jalgaon.           ...RESPONDENT
      


                          ...
   



     Mr. Amol K. Gawali, Advocate for petitioners.
     Mr. A.M. Gholap, Advocate for respondent sole.
                          ...
         





                            CORAM: S.S. SHINDE, J.

DATE : 12TH DECEMBER, 2011

ORAL JUDGMENT :

. Rule. Rule made returnable forthwith.

With the consent of learned Counsel appearing for

the parties, this petition is taken up for final

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disposal.

2. Heard learned Counsel appearing for the

petitioners and learned Counsel appearing for the

respondent sole.

3. This writ petition takes exception to the

order dated 15-02-2011 passed by the 2nd Joint

Civil Judge, Senior Division, Jalgaon thereby

rejecting the application below Exhibit-45 in

Special Civil Suit No. 209 of 2008.

4. Learned Counsel for the petitioners

invited my attention to the grounds taken in the

writ petition which reads thus :

(I) The learned Lower Court erred in rejecting the application below Exh. 45, without

appreciating the reasons assigned by the petitioners for the delay caused in filing the application seeking amendment of written

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statement.

(II) The learned Lower Court ought to have appreciated that the

Advocate on record was duty bound to properly plead the case of the present petitioners by stating

necessary facts in the written statement. Since the Advocate was suffering from ill health, the

advocate had not properly

represented the case of the present petitioners.

(III) The learned Lower Court ought to have appreciated that

though the petitioners were aware about all the facts, which are

sought to be incorporated by the proposed amendment, by reasons of

the casual approach of the earlier advocate of the present petitioners, the same could not be placed on record on the form of

Written Statement, for which the petitioners cannot be punished.

       (IV)        The   sequence   of   events,  
       right   from   the   date   of   engaging  





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the advocate would reflect that by reasons of his ill health, he

could not properly represent the case of the present petitioners

for which the petitioners cannot be made to suffer.

(V) The learned Lower Court ought to have appreciated that there is no blanket prohibition

for entertaining an application

for amendment after the start of evidence.

The provisions of Order VI Rule 17, give discretion to the

Courts to allow entertainment of application in appropriate cases

after considering the reasons allotted for the delay caused in

filing application.

(VI) The approach of the learned Lower Court in out rightly

rejecting the application of the present petitioners below Exh. 45 without application of mind, to the reasons assigned by the petitioners for the delay caused

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in filing the application, can be termed as perverse.

(VII) The refusal of exercising

the discretion by the lower Court, without applying its mind to the reasons assigned in the

application below Exh. 45 can be termed as a jurisdictional error and deserves to be corrected.

5.

Learned Counsel for the petitioners would

submit that, the application below Exhibit-45 was

filed for the amendment of the Written Statement.

In para-3 and 4 of the said application, it was

specifically stated that, the applicants i.e.

petitioners herein are not aware about law

provisions. All the relevant facts/material on

which the applicants wish to rely were not

included/incorporated in the written statement

filed by the Advocate who was engaged by them.

Learned Counsel further invited my attention to

para-4 of the said application and submitted that,

the Advocate who appeared on behalf of the

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applicants/petitioners did not put forth the case

of the applicants properly. The written statement

which was filed by the Advocate who appeared

initially was containing only 10 to 12 sentences.

The entire material, on which the

applicants/petitioners wanted to place on record

through the written statement in support of their

case, was not incorporated in the written

statement. The Advocate who was engaged, was

suffering from serious ailment and therefore,

another Advocate was engaged by the petitioners

before the trial Court.

. The sum and substance of the argument of

the Counsel appearing for the petitioners is that,

because of the mistake of the Advocate for not

incorporating all the averments/material on which

the petitioners wish to rely in support of their

case in the written statement, the petitioners

should not suffer. The petitioners should get full

opportunity to represent their case by way of

allowing the application for amendment of the

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written statement. Learned Counsel further

submits that, since the parties are yet to lead

evidence and only affidavit in lieu of

examination in chief is filed by the plaintiff, no

prejudice will be caused to the plaintiff if such

application for amendment of the written statement

is allowed by this Court. Learned Counsel at the

cost of repetition would submit that, because of

the mistake of the Advocate who did not file

detail written statement, the petitioners should

not suffer.

6. Learned Counsel for the petitioners

invited my attention to the reported judgment of

this Court in the case of Twist Spin Industries

vs. KMH Enterprises reported in 2009(4) ALL MR 763

and submitted that, this Court in para-7 of the

said judgment observed that, provisions of Order 6

Rule 17 of the Code of Civil Procedure are not

mandatory but it is discretionary. Learned Counsel

also invited my attention to the reported judgment

of the Hon'ble Supreme Court in the case of

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Rajkumar Gurawara (Dead) Through L.Rs. vs. M/s.

S.K. Sarwagi and Co. Pvt. Ltd. and another

reported in A.I.R. 2008 S.C. 2303 and in

particular para-5 of the said judgment. According

to learned Counsel for the petitioners, only after

completion of evidence, the question of prejudice

to the opposite party may arise and in such event,

it is incumbent on the part of the Court to

satisfy the conditions prescribed in the

provisions of Order 6 Rule 17 of the Code of

Civil Procedure. Learned Counsel also placed

reliance upon the reported judgment of the Hon'ble

Supreme Court in the case of Chander Kanta Bansal

vs. Rajinder Singh Anand reported in (2008) S.C.C.

117 and in particular para-16 of the said

judgment. In para-16 of the said judgment, the

dictionary meaning of "due diligence" is

discussed. Relying upon the said paragraph,

learned Counsel for the petitioners would submit

that, "due diligence", in law, means doing

everything reasonable, not everything possible.

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Learned Counsel also relied upon another reported

judgment of the Hon'ble Supreme Court in the case

of Sushil Kumar Jain vs. Manoj Kumar and another

reported in 2010(4) Bom.C.R. 437 and submitted

that, provisions of Order 6 Rule 17 of the Code of

Civil Procedure gives discretion to the Court that

at any stage of the proceedings, amendment to the

written statement can be allowed. Learned Counsel

in particular placed reliance on para-8,9 and 10

of the said judgment.

. Relying upon the above mentioned reported

judgments of this Court and the Supreme Court, the

Counsel for the petitioners submits that, this

petition may be allowed.

7. On the other hand, learned Counsel for

the respondent invited my attention to the Roznama

which is placed on record from pages 16 to 31 of

the compilation of the writ petition at Exhibit-B.

Learned Counsel submits that, at least on two

occasions, adjournment was sought by the original

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defendants i.e. petitioners for filing the written

statement. On 14-11-2008 the application for

adjournment for granting time to file W.S. was

rejected. 'No W.S. Order' was passed by the trial

Court and thereafter, the application was filed by

the original defendants for setting aside 'No W.S.

Order'. Said application was allowed on

02-07-2009. Thereafter, Written Statement was

filed. Issues were framed on 28-10-2009.

Affidavit in lieu of examination in chief was

filed by the plaintiff on 26-02-2010. The

petitioners herein - original defendants have

filed application for amendment of the written

statement on 13-07-2010. Said application was

opposed by the plaintiff, however, on 31-07-2010

said application for amendment was allowed.

Thereafter, the matter was adjourned time to time

and on couple of occasions to enable the

petitioners i.e. defendants to file amended copy

of the written statement on record. It is further

submitted that, from the date of which amended

copy of the written statement was filed on record,

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on the said date another application was filed for

further amendment of the written statement.

. The Counsel for the respondent would

submit that, there was deliberate attempt on the

part of the petitioners herein to adjourn the

matter for one or other reason though their

application at Exhibit-37 for amendment of the

written statement was allowed, he did not

incorporate all material/facts which they wanted

to incorporate in the written statement.

According to the Counsel for the respondent, not

only that the mandate of provisions of Order 6

Rule 17 of the Code of Civil Procedure is not

fulfilled in this case, but attempt was being made

by the petitioners i.e. defendants to seek

adjournments in the matter so as to prolong the

hearing of the suit. Learned Counsel further

submitted that, none of the judgment cited by the

Counsel for the petitioners takes a view that the

second application for amendment of the Written

Statement is also required to be considered and

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allowed liberally. Therefore, none of the

judgments cited by the Counsel for the petitioners

is applicable in the facts of this case. It is

further argued that, it is not the case of the

petitioners that, the petitioners instructed the

Advocate to incorporate material/information given

by them and the Advocate, in turn, has not

incorporated the same in the written statement.

Written Statement was duly verified by the

petitioners. Therefore, according to the Counsel

for the respondent, writ petition is devoid of any

merits and same deserves to be dismissed.

8. Upon hearing the Counsel for the parties

and in the facts and circumstances of this case,

it would be relevant to state that, the main

ground which is taken by the petitioners in their

application at Exhibit-45 for amendment of the

written statement appears to be that the Advocate

who was engaged by them did not take due care in

filing proper written statement. Further

contention of the petitioners appears to be that,

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even in the application which was filed for

amendment of the written statement at Exhibit-37,

the earlier Advocate did not care to incorporate

all the material/facts/points which the

petitioners wanted to incorporate in the written

statement. From careful perusal of the

application at Exhibit-45 nowhere statement is

made by the petitioners-applicants that particular

instructions/matter was given to the Advocate who

was engaged by them to incorporate said

instructions/matter which now they wish to bring

on record by way of amendment. I find considerable

substance in the argument advanced by the Counsel

for the respondent that, it is not the case of the

applicants/petitioners that full facts/material

was handed over to the Advocate to incorporate the

same in the written statement and the Advocate

failed in his duties to file proper and detailed

written statement.

. On the contrary, from perusal of the

affidavit in support of the written statement, it

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is abundantly clear that, the petitioners have

verified the said written statement. On query to

the Counsel appearing for the petitioners that

whether the petitioners are educated, the Counsel

clearly concedes that the applicants are educated,

they have passed 12th standard. Therefore, by any

stretch of imagination, it cannot be said that the

applicants/petitioners were not aware about what

is stated in the first written statement.

9. That apart, the application which was

filed at Exhibit-37 for amendment of the written

statement came to be allowed. Said application

was entertained at the stage when the plaintiff

did file affidavit in lieu of examination in

chief, it was possible for the petitioners to

incorporate all the relevant material/facts/points

on which they wanted to rely in the case. However,

it appears that no due diligence was shown by the

applicants. From perusal of the judgments of the

Hon'ble Supreme Court and in particular para-16 of

the judgment in the case of Chander Kanta Bansal

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(supra), one of the meaning of 'due diligence'

means reasonable diligence; it means such

diligence as a prudent man would exercise in the

conduct of his own affairs.

10. Therefore, in the facts of this case,

it was for the applicants-petitioners to bring to

the notice of the Advocate the material/matter

which now they wish to bring in the written

statement by way of amendment at the time of

filing of the main written statement or at the

time of first amendment in the written statement.

It is not the case of the applicants-petitioners

that the matter now which they want to incorporate

by way of amendment in the written statement, was

not within the knowledge of the applicants-

petitioners. It is the contention of the

petitioners-applicants that, Advocate who was

appearing for them earlier did not incorporate

that entire material in the main written statement

and also by way of amendment. In my considered

opinion, the attempt of the applicants-petitioners

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appears to be to prolong the trial. By any

stretch of imagination, it cannot be said that,

the applicants-petitioners who can read and write,

have no idea of incorporating all the necessary

averments/material in the main written statement

and amended written statement after their

application at Exhibit-37 for amendment of written

statement was allowed.

11.

Even if the contention of the petitioners

is accepted that the provisions of Order 6 Rule 17

of the Code of Civil Procedure are required to be

interpreted liberally. However, in the facts of

the present case, when one opportunity was given

to the petitioners-applicants for amending the

written statement by allowing application at

Exhibit-37, the petitioners did not avail the said

opportunity. Present case stands on different

footing on facts than the cases cited by the

Counsel for the petitioners, for the simple reason

that, in the present case one opportunity was

given to the petitioners-applicants for amendment

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of the written statement. It is also not in

dispute that on the date of which amended copy of

the written statement was filed on record, on the

same day, second application for amendment of the

written statement was filed.

12. The Hon'ble Supreme Court in the case of

Vidyabai and others vs. Padmalatha and another

reported in A.I.R. 2009 S.C. 1433 in para-7 has

discussed the legislative intent behind bringing

the proviso to Rule 17 Order 6 of the Code of

Civil Procedure. Para-7 of the said judgment

reads thus :

"7. By reason of the Civil Procedure Code (Amendment) Act, 2002

(Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 176 of the Code, which

reads as under :

"Provided that no application for amendment shall be allowed after the trial has

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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."

It is couched in a mandatory

form. The court's jurisdiction to allow such application is taken away unless the conditions 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."

In para-8 of the said judgment, the Supreme Court

held that, the date on which the issues are framed

is the date of first hearing. Provisions of the

Code of Civil Procedure envisage taking of various

steps at different stages of the proceeding.

Filing of an affidavit in lieu of examination in

chief of the witness, would amount to

'commencement of proceeding'. Therefore, the

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judgment of the Supreme Court in the case of

Vidyabai (supra) is after discussing the

legislative intent in adding the proviso to Rule

17 Order 6 of the Code of Civil Procedure. The

Supreme Court in the said judgment has also taken

a view that the provisions of Order 6 Rule 17 of

the Code of Civil Procedure are in mandatory form.

The Court's jurisdiction to allow such application

under Order 6 Rule 17 of the Code of Civil

Procedure is taken away unless the conditions

precedent therefor are satisfied. That Court 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.

13. Therefore, taking overall view of the

matter and in the facts of this case, it was

possible for the applicants-petitioners to have

raised the matter before commencement of the trial

either in the main written statement or by way of

amendment in the written statement when the

application at Exhibit-37 for amendment of the

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written statement was allowed by the trial Court.

From reading the application at Exhibit-45 in its

entirety, I am of the opinion that, no due

diligence was shown by the applicants-petitioners.

Therefore, the trial Court has not committed any

error in passing the impugned order. The view

taken by the trial Court is a reasonable view.

The view taken by the trial Court is in consonance

with the material brought on record. Once

reasonable view is taken and findings are not

perverse, even though another view is possible, is

no ground to entertain the writ petition under

Article 226 and 227 of the Constitution of India.

14. For the reasons aforesaid, the writ

petition is devoid of any merits, same stands

rejected. Rule discharged.

sd/-

[S.S. SHINDE, J.]

sut/DEC11