Bombay High Court
Smt. Jayashri Ashok Unale vs Shri. Pandurang Ananda Jadav And Ors on 19 December, 2023
Author: Amit Borkar
Bench: Amit Borkar
2023:BHC-AS:38369
906-wp-14505-2022.doc
SA Pathan
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.14505 OF 2022
Jayashri Ashok Unale ... Petitioner
V/s.
Pandurang Ananda Jadhav & Ors ... Respondents
Mr. Swaroop Mahavir Karade, for Petitioner.
Mr. N. J. Patil i/by Mr. Patil Akshay Neminath, for
Respondent Nos.1 to 3 & 4A to 4C.
CORAM : AMIT BORKAR, J.
DATED : DECEMBER 19, 2023
P.C.:
1. The petitioner is original plaintiff who is challenged order
passed by the Trial Court rejecting application for amendment of
the plaint to incorporate new property in a suit for partition. The
Trial Court rejected the application on the ground that "due
diligence" as required under proviso to Order 6, Rule 17 of the
Code of Civil Procedure, 1908 is not pleaded.
2. The petitioner filed Regular Civil Suit No.499 of 2012. In the
said suit, Gat Nos.614 and 659/2B were described as the suit
properties. The plaintiff claims 1/5 share in the suit properties.
Further, relief that release deed dated 26 September 1997 be
declared as null and void is also prayed.
906-wp-14505-2022.doc
3. The defendants contested the suit by filing written
statement.
4. The petitioner filed affidavit in lieu of examination in chief
on 19 September 2019.
5. The petitioner on 12 March 2020 filed an application for
amendment of plaint to incorporate entire Gat No.614 as suit
property and to add averments regarding invalidity of sale of half
share in the Gat No.614 in favour of third party purchaser.
6. The Trial Court rejected the application on the ground that
the petitioner failed to prove "due diligence" as required under
proviso to Order 6, Rule 17 of the Code of Civil Procedure, 1908.
7. On perusal of the application for amendment, it appears that
in paragraph 1 of the plaint it is stated that, despite plaintiff's
instructions, the Advocate for plaintiff did not incorporate the
necessary averments regarding acquisition of Gat No.614. The
plaintiff realized the said fact only at the time of filing of affidavit
in lieu of examination in chief. The plaintiff thereafter consulted
other persons and contacted her Advocate. At that time, she
realized that the entire Gat No.614 was not made suit property
and the necessary averments raising challenge to the validity of
sale deed of 1981 and 1998 were not made in the suit.
8. According to learned Advocate for the petitioner, filling of
affidavit in lieu of examination in chief cannot be termed as
commencement of trial. He relied on the judgment of Apex Court
in the case of Anita and Another Vs. Anil and Others reported in
2021 SCC OnLine SC 3250 where the Supreme Court noted
906-wp-14505-2022.doc
difference of judicial opinion amongst the Bombay High Court and
Calcutta High Court. However, the Apex Court in the case of
Vidyabai And Others Vs Padmalatha And Another reported in
(2009) 2 SCC 409 has held that filing of affidavit in lieu of
examination in chief is commencement of trial. In the absence of
authoritative pronouncement to the contrary, the settled position
of law in view of judgment in the case of Vidyabai (Supra) is that
filing of affidavit in lieu of examination in chief amounts to
commencement of trial. The order dated 13 September 2021 does
not lay down any proposition of law which is inconsistent with
Vidyabai (Supra). The order cannot be termed as either ratio or
obiter dicta. Hence, it will not help to the petitioner.
9. The Apex Court, in the case of J. Samuel and Others Vs
Gattu Mahesh and Others, reported in (2012) 2 SCC 300 had
occasion to explain the expression "due diligence" in the context of
the proviso to Order 6, Rule 17 of the Code of Civil Procedure,
1908. The Apex Court, in paragraphs 19 and 20 of the said
judgment, has held as follows:
"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
906-wp-14505-2022.doc
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."
10. In the light of parameters laid down by the Apex Court in the
case of J Samuel (Supra) interpreting expression "due diligence",
the explanation in paragraph 1 of the plaint by the plaintiff does
not fulfill the said parameters as the explanation given by the
plaintiff cannot be termed as "due dililgence". Therefore, the
plaintiff has failed to prove jurisdictional fact of "due diligence".
Hence, rejection of amendment by the Trial Court need not be
interfere.
11. The writ petition is dismissed. No costs.
(AMIT BORKAR, J.)
