Bombay High Court
3 To 5 vs Smt. Annapurna Nilkanth Shende on 22 October, 2013
Bench: Ravi K. Deshpande
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 755/2013
1] Smt. Suryakanta Ishwar Lohkare,
aged 51 years, Occ. Household,
R/o. Indira Mata Nagar, Digdoh,
Tah. and Distt. Nagpur.
2] Smt. Shubhangi Jaikumar Kamble,
aged 36 years, Occ. Household,
R/o. Jogi Nagar, Galli No. 12,
Near Bohadure Kirana Stores, Nagpur.
3] Smt. Vaishal Atish Bagde,
aged 31 years, Occ. Household.
4] Smt. Kalpanaa Sudhir Lohkare,
aged 34 years,
5] Subham Sudhir Lohkare,
aged 8 years, Occ. Students,
through Natrual Guardian
Smt. Kalpana Sudhir Lohkare
3 to 5 R/o. Indira Mata Nagar,
Digdoh, Tah.a nd Distt. Nagpur PETITIONERS
...VERSUS...
1] Smt. Annapurna Nilkanth Shende,
aged about 56 years, Occ. Household,
210-, Borkhedi Railway,
Tah. and Distt. Nagpur,
2] Manoj Jaiswal,
aged Major, Occ. Business,
R/o. Bela, Post Bela, Umrer,
Distt. Nagpur. RESPONDENTS
::: Downloaded on - 27/11/2013 20:28:47 :::
2
--------------------------------------------------------------------------------------------
Shri B.G.Kulkarni, Advocate for the petitioners
Shri P.P.Kotwal, Advocate, , for Respondent No.1
None for respondent no.2
--------------------------------------------------------------------------------------------
CORAM: R. K. DESHPANDE, J.
DATE : 22 nd OCTOBER, 2013.
ORAL JUDGMENT
Rule is made returnable forthwith.
Heard the matter finally by consent of the learned
counsels appearing for the parties.
2] This petition challenges the order dated 31.10.2012
passed by the learned 26th Joint Civil Judge, Junior Division,
Nagpur, rejecting the application Exh. 42 filed in Regular Civil Suit
No. 242/2007. The application was for amendment of written
statement filed by the defendant nos. 1 to 5. The written
statement was filed by them on 27.07.2007. The issues were
framed on 20.01.2012. The affidavit in lieu of examination in chief
was filed on 03.05.2012 and the further examination in chief of the
plaintiff was recorded on 10.07.2012. The matter was fixed for the
cross examination of the plaintiff. It is at this stage the application
was filed for amendment of written statement on 06.09.2012.
3] The trial court recorded the finding that the application
was filed after the commencement of trial and the perusal of the
application reveals that no where there is even a whisper as to how
the defendants have failed to raise such plea before the
commencement of the trial. It has been held that mere
inadvertence cannot be a ground to ignore the statutory provisions.
The amendment proposed is not a new discovery but was
prevailing since inception of suit and it could have been easily
raised prior to the commencement of the trial. The finding is also
recorded that the amendment does not strictly appear to be
necessary for the adjudication of the present suit.
4] Shri Kulkarni, the learned counsel appearing for the
petitioner has placed his reliance upon the following decision.
[1] Rajesh Kumar Aggrawal and others vrs. K.K Modi
and others, reported in (2006) 4 SCC 385
[2] Baldev Singh and others vrs. Manohar Singh and
another, reported in (2006) 6 SCC 498;
[3] Usha Balasaheb Swami and others vrs. Kiran
Appaso Swami and others, reported in (2007) 5
SCC 602;
[4] Andhra Bank vrs. ABN Amro Bank N.V. and others,
reported in (2007) 6 SCC 167;
[5] Piedade Fernandes vrs. Charlene Leitao, reported
in 2012 (1) Mh.L.J. 317
5] In the decision of the Apex Court in Rajesh Kumar
Aggrawal's case, cited supra, the Apex Court has held in paragraph
15 as under;
"15. The object of the rule is that Courts should try the merits of the case
that come before them and should, consequently, allow all amendments
that may be necessary for determining the real question in controversy
between the parties provided it does not cause injustice or prejudice to
the other side."
6] He has invited my attention to para 17 of the decision of
the Apex Court that in Baldeo Singh's case. The said para 17 is as
under;
"17. Before we part with this order, we may also notice that proviso to
Order 6 Rule 17 of the CPC provides that amendment of pleadings shall
not be allowed when the trial of the Suit has already commenced. For
this reason, we have examined the records and find that, in fact, the trial
has not yet commenced. It appears from the records that the parties have
yet to file their documentary evidence in the Suit. From the record, it also
appears that the Suit was not on the verge of conclusion as found by the
High Court and the Trial Court. That apart, commencement of trial as
used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be
understood in the limited sense as meaning the final hearing of the suit,
examination of witnesses, filing of documents and addressing of
arguments. As noted herein after, parties are yet to file their documents,
we do not find any reason to reject the application for amendment of the
written statement in view of proviso to Order 6 Rule 17 of the CPC which
confers wide power and unfettered discretion to the Court to allow an
amendment of the written statement at any stage of the proceedings".
7] In the decision of the Apex Court in Usha Balasaheb
Swami's case, the decision in Baldeo Singh's case has been
followed in para 20, which reads as under;
"20. Such being the settled law, we must hold that in the case of
amendment of a written statement, the courts are more liberal in
allowing an amendment than that of a plaint as the question of
prejudice would be far less in the former than in the latter case [see B.K.
Narayana Pillai v. Parameswaran Pillai (2000(1) SCC 712) and Baldev
Singh & Ors. v. Manohar Singh (2006 (6) SCC 498)]. Even the decision
relied on by the plaintiff in Modi Spinning (supra) clearly recognises
that inconsistent pleas can be taken in the pleadings. In this context, we
may also refer to the decision of this Court in Basavan Jaggu Dhobi v.
Sukhnandan Ramdas Chaudhary (Dead) [1995 Supp (3) SCC 179]. In
that case, the defendant had initially taken up the stand that he was a
joint tenant along with others. Subsequently, he submitted that he was a
licensee for monetary consideration who was deemed to be a tenant as
per the provisions of Section 15A of the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947. This Court held that the
defendant could have validly taken such an inconsistent defence. While
allowing the amendment of the written statement, this Court observed in
Basavan Jaggu Dhobi's case (supra) as follows :-
"As regards the first contention, we are afraid that the courts below
have gone wrong in holding that it is not open to the defendant to
amend his statement under Order 6 Rule 17 CPC by taking a
contrary stand than was stated originally in the written statement.
This is opposed to the settled law open to a defendant to take even
contrary stands or contradictory stands, the cause of action is not
in any manner affected. That will apply only to a case of the plaint
being amended so as to introduce a new cause of action."
8] Relying upon the aforesaid decisions, it is urged that the
first thing which the court is required to see is whether the
amendment proposed is necessary for deciding the real controversy
involved in the matter. He further submits that the amendment
could be raised at any stage of the suit and the court should,
therefore, be liberal in allowing the application for amendment.
He has tried to make out the distinction between the amendment
in the plaint and the amendment in the written statement. He
submits that the amendment in the written statement needs to be
allowed more liberally than the amendment in the plaint.
9] With the assistance of the learned counsels appearing for
the parties, I have gone through all the decision cited supra. In
Baldeo Singh's case, the amendment in the written statement was
rejected on the three grounds i.e. (i) that since the appellants had
made certain admissions in the written statement, its amendment
cannot be allowed permitting the appellants to withdraw from the
admissions made in the same; (ii) the question of limitation cannot
be allowed to be raised by way of amendment of the written
statement and (iii) inconsistent pleas in the written statement
cannot also be allowed to be raised by seeking its amendment. It
was not the ground of rejection of the application for amendment
that there was no due diligence shown by the defendants in making
an application for amendment of written statement after the
commencement of trial. It was not a case where the question of
due diligence was involved. Similarly, in none of the other
decisions, the question of 'due diligence' was involved. None of
these decisions lay down a ratio that after the commencement of
trial, the amendment can be allowed without recording any finding
on the question of 'due diligence'. In the decision of this Court in
case of Piedade Fernandes vrs. Charlene Leitao, reported in 2012
(1) Mh.L.J. 317, the finding is recorded that the amendment was
sought after the commencement of trial incorporating the facts
which occurred during the pendency of the suit. In view of this,
none of the decisions cited by Shri Kulkarni, the learned counsel
for the petitioner, are of any help to the petitioner.
10] In the decision of this Court delivered in W.P. No.
722/2013 (Walchandnagar Industries Limited vrs. Indraprastha
Developers and others) and other connected matters, delivered on
25.09.2013, the question of due diligence has been dealt with after
considering the several decisions of the Apex Court. The law on
the point is summarized in para 87 as under;
"87. The law on "due diligence" developed till this date is summarized
as under :
(a) "Due diligence" means careful and persistent application
and effort. It means the diligence as a prudent man would
exercise in the conduct of his own affairs. Unless the party takes
prompt steps, mere action cannot be accepted after the
commencement of the trial. The due diligence determines the
scope of party's constructive knowledge of the claim. It is a kind of
reasonable investigation, which is necessary before claiming the
reliefs.
(b) The due diligence is distinct from ignorance. In spite of
knowledge, ignorance by a party or an Advocate cannot be a
matter of due diligence. The neglect to perform an action, which
one has an obligation to do, cannot be called as a mistake.
(c) The degree of prejudice to the other side by an
amendment after the commencement of the trial is greater than
one at pre-trial stage.
(d) Without recording finding on the question of due
diligence, the Court shall not get jurisdiction either to allow or
disallow an amendment in the pleadings after the commencement
of the trial.
(e) The Court while allowing an amendment must record a
finding that in spite of due diligence, the party could not have
raised the matter before the commencement of the trial or that the
events sought to be brought on record by way of an amendment
have occurred subsequent to the commencement of trial.
(f) The facts and grounds in the application for amendment
must be clearly stated to bring out a case that the delay caused
was beyond the control and diligence of the party proposing the
amendment.
(g) Where a party had acted with due diligence or not,
would depend upon the facts and circumstances of the case and no
hard and fast rule or strait-jacket formula can be laid down."
11] It is on the basis of the ratio laid down by the Apex
Court in Paras 11 and 19 in case of Vidyabai and Others vrs.
Padmalatha and another, reported in 2009 (2) SCC 409, this
court had held that without recording finding on the question of
'due diligence', the court shall not get jurisdiction either to allow or
reject the application if it is made after the commencement of the
trial. Paragraphs 11 and 19 of the said decision in Vidyabai's case
are reproduced below;
"11. From the order passed by the learned Trial Judge, it is evident
that the respondents had not been able to fulfill the said pre-
condition. The question, therefore, which arises for consideration is
as to whether the trial had commenced or not. In our opinion, it
did. 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, in our
opinion, would amount to "commencement of proceeding".
19. It is the primal duty of the court to decide as to whether such
an amendment is necessary to decide the real dispute between the
parties. Only if such a condition is fulfilled, the amendment is to be
allowed. However, proviso appended to Order VI, 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."
12] In the light of the aforesaid clear dictum of the Apex
Court, I have gone through the pleadings for amendment of the
written statement. There is absolutely no case of due diligence
made out in the application for amendment. The necessary facts
and grounds to demonstrate due diligence are not stated. The facts
stated by way of proposed amendment were within the knowledge
of the defendants when the original written statement was filed
and it is not the case that the events which have been narrated in
the proposed amendment have occurred during the pendency of
the suit, that too after the commencement of the trial.
13] Shri Kulkarni, the learned counsel appearing for the
petitioner has relied upon the decision of the Apex Court in case of
Kakumanu Pedasubhayya and another vrs. Kakumanu Akkammaa
and another, reported in AIR 1958 SC 1042, specially paragraph
14 therein, to urge that a right of the minor is involved and the
proposed amendment directly reflects upon the right of the minor.
He, therefore, submits that the amendment needs to be allowed on
that count.
14]
It is not in dispute that it was a joint written statement
filed by the defendant nos.1 to 5. The plea raised by way of
amendment could have been raised when the written statement
was filed. Apart from this, no such case is made out in the
application for amendment of the written statement. Hence, under
the garb of protecting rights of a minor, the circuitous way cannot
be adopted, to get the amendment allowed at the instance of the
defendants.
In the result, no interference is called for in the order
impugned. The writ petition is dismissed.
JUDGE
Rvjalit
