Bombay High Court
The General Manager, Central ... vs Mehmooda Shikshan And Mahila ... on 8 June, 2017
Bench: I.K. Jain
wp.5769.14.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.5769 OF 2014
01] The General Manager, Central Railway,
Chhatrapati Shivaji Terminus, Mumbai,
through D.R.M., Central Railway,
Kingsway, Nagpur.
02] The Divisional Railway Manager (D.R.M.),
Central Railway, Jaisthamb Chowk,
Kingsway, Nagpur.
03] The Senior Divisional Engineer (Cordi),
Central Railway, Jaisthamb Chowk,
Kingsway, Nagpur. .... Petitioners
-- Versus -
Mehmooda Shikshan & Mahila Gramin
Bahuuddeshiya Sanstha, Nagpur,
having its office at 690-691,
Golcha Marg, Sadar Bazar, Nagpur,
through its President
Mst. Saba Athar w/o Mohammed Athar,
aged about 33 years,
Occ. President of the Appellant,
Golcha Marg, Sadar, Nagpur. .... Respondent
Shri P.S. Lambat, Advocate for the Petitioners.
Shri Masood Shareef, Advocate for the Respondents.
CORAM : KUM. INDIRA JAIN, J.
DATE : JUNE 8, 2017.
ORAL JUDGMENT :-
Rule. Rule made returnable forthwith. Heard finally
with the consent of learned Counsel for the parties
02] This petition takes an exception to the order passed
on Exh.114 by the learned 3rd Joint Civil Judge, Senior Division,
Nagpur on 28/08/2014 thereby rejecting the application for
amendment filed by the petitioners/defendants under Order VI
Rule 17 of the Code of Civil Procedure.
03] The facts giving rise to the petition may be stated in
nutshell as under :
i. Respondent instituted R.C.S. No.456/2009 against the
petitioners for declaration and perpetual injunction. In
pursuance to the summons issued by the trial court,
petitioners/defendants appeared and contested the
suit by filing their written statement. Issues came to
be framed and the suit was then fixed for evidence of
the parties.
ii. After the plaintiff closed its evidence, defendants on
30/10/2012 moved an application for amendment
contending therein that plaintiff-society had
encroached upon the land of Railways. The application
was objected by plaintiff. Vide order dated
28/08/2014, trial court refused to grant proposed
amendment. Being aggrieved thereof, defendants
have preferred the present petition.
04] Heard Shri P.S. Lambat, learned Counsel for
petitioners and Shri Masood Shareef, learned Counsel for
respondent at length. Learned Counsel for petitioners
vehemently contended that measurement of the land was taken
later on during pendency of suit and during measurement, it was
found that plaintiff encroached upon the land of Railways. He
submitted that in view of subsequent developments, application
for amendment was moved. The submission is that proposed
amendment was essential to decide the controversy between
the parties. It is submitted that in case amendment would have
been allowed, no prejudice would have been caused to plaintiff
as plaintiff had an opportunity to cross-examine the witnesses.
In support of submissions, learned Counsel for petitioners placed
vehement reliance on -
i. Baldev Singh and others vs. Manohar Singh and
another - (2006) 6 SCC 498.
ii. North Eastern Railway Administration, Gorakhpur vs.
Bhagwan Das [Dead] by L.Rs. - (2008) 8 SCC 511.
iii. State of Madhya Pradesh vs. Union of India and
another - (2011) 12 SCC 268.
iv. Samuel and others vs. Gattu Mahesh and others -
(2012) 2 SCC 300.
v. Abdul Rehman and another vs. Mohd. Ruldu and
others - (2012) 11 SCC 341.
05] Per contra, learned Counsel for respondent submitted
that application for amendment came to be filed after the
closure of evidence by the plaintiff and defendants were not
diligent. It is submitted that previous application [Exh.56] filed
on the same grounds came to be withdrawn and in view of
withdrawal of the first application, successive application on
same facts was barred by law. Reliance is placed on the proviso
to Order 6 Rule 17 of C.P.C. and it is submitted that amendment
application was rightly rejected by the trial court as defendants
were not diligent in bringing amendment on record.
06] Before considering the acceptability or otherwise of
the reasonings recorded by the trial court, it is useful to refer
Order 6 Rule 17 of C.P.C. It reads thus -
"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."
07] From the proviso substituted by Act 22 of 2002, it is
clear that application for amendment shall not be allowed after
the trial has commenced, unless the court comes to the
conclusion that inspite of due diligence, party could not have
raised matter before commencement of trial. In this connection
learned Counsel for respondent relied upon the decisions in
J. Samueall and others vs. Gattu Mahesh and others -
(2012) 2 SCC 300 and Abdul Rehman and another vs.
Mohd. Ruldu and others - (2012) 11 SCC 341 and submitted
that test to determine due diligence is laid down in these
authorities and considering the test, in the given facts of the
present case, petitioners were not diligent in filing the
application for amendment.
08] In paragraphs 19 and 20 of the judgment in
Samueall and others vs. Gattu Mahesh and others (supra),
the Hon'ble Supreme Court observed thus :
"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 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."
09] In the present case, it is not in dispute that
application [Exh.56] was moved by the defendants for
amendment on 06/11/2011. Later on this application being 'not
pressed' was disposed of. The withdrawal of application was
unconditional. It can be seen from copies of applications
[Exhs.56 and 114] that on the identical pleadings amendment
was sought later on by the defendants. No reason is assigned for
filing second application after unconditional withdrawal of first
application.
10] It is not in dispute that trial had already commenced.
Plaintiff's evidence was closed. Defendants have commenced
their evidence and the same was in process. There is no whisper
in application [Exh.114] even to remotely indicate that
defendants despite due diligence could not move application
before the trial commenced. The proviso to Order 6 Rule 17
C.P.C., therefore, comes into play and the trial court has rightly
rejected the application on the ground that defendants were not
diligent in moving application for amendment after the
commencement of trial. No jurisdictional error or error of law is
noticed in the impugned order. No interference is, therefore,
warranted in writ jurisdiction. Hence the following order :
ORDER
I. Writ Petition No.5769/2014 stands dismissed.
II. Rule is discharged with no order as to costs.
*sdw JUDGE
