Chattisgarh High Court

Ghanshyam Chandrakar vs Krishna Chandrakar on 1 July, 2024

    Neutral Citation
    2024:CGHC:22966



                                            1


                                                                                     NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR
                         WP227 No. 529 of 2024
   Ghanshyam Chandrakar S/o Late Tangoo Chandrakar, Aged About 42 Years
   R/o Village-Janta (Pendry), P.O.-Dadhi, Tahsil And District-Bemetra (C.G.)
   (Defendant No. 01)
                                                                             --- Petitioner.
                                     Versus
1. Krishna Chandrakar S/o Phoolsingh Chandrakar, Aged About 35 Years R/o
   Near Gaura Choura, Urla Road, Ramnagar, Durg, P.O. Mohan Nagar, Durg,
   Tahsil And District-Durg (C.G.) (Plaintiff No. 01)
2. Smt. Sonkunwar W/o Kamal Chandrakar, Aged About 50 Years R/o Rampura,
   P.O. Kanhera, Tahsil And District-Bemetara (C.G.) (Plaintiff No. 02)
3. Smt. Sonia W/o Ramlal Chandrakar Aged About 42 Years R/o Near Shiv
   Temple, Girdhari Nagar, Durg, P.O.-Durg, Tahsil And District-Durg (C.G.)
   (Plaintiff No. 03)
4. Gopelal @ Gofelal S/o Tagnoo Chandrakar, Aged About 35 Years R/o Village-
   Janta (Pendry), P.O.-Dadhi, Tahsil And District-Bemetara (C.G.) (Defendant
   No. 02)
5. Raghunandan @ Baba S/o Dukkal @ Tukkal Chandrakar Aged About 47
   Years R/o Village-Janta (Pendry), 8 After P.C. No. 5, P.O.-Dadhi, Tahsil And
   District-Bemetara (C.G.) (Defendant No. 03)
6. Bhanmati W/o Maniram Chandrakar Aged About 45 Years R/o Bhartara, P.O.-
   Khandsara, Tahsil And District-Bemetara (C.G.) (Defendant No. 04)
7. Sarojan W/o Chitrengu Chandrakar Aged About 42 Years R/o Village-Baiji,
   P.O.-Dashrangpur, Tahsil-Kawardha, District-Kabeerdham (C.G.) (Defendant
   No. 05)
8. Aghaniya W/o Kailash Chandrakar Aged About 40 Years R/o Village Kotyari,
   P.O.-Dadhi, Tahsil And District-Bemetara (C.G.) (Defendant No. 06)
9. State Of Chhattisgarh Through The Collector, Bemetara, District-Bemetara
   (C.G.) (Defendant No. 07)
                                                                          --- Respondents.

(Cause title downloaded from CIS periphery)

For Petitioner : Mr. Viprasen Agrawal, Advocate. For State : Mr. Rajeev Bharat, Govt. Advocate.

SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari Order On Board Neutral Citation 2024:CGHC:22966

01.07.2024

1. This petition has been preferred against the order dated 04.04.2024

passed by the Court of Third Civil Judge, Class-1, Bemetara in Civil Suit

No.47-A/2017, whereby, application preferred by the defendant

No.1/petitioner under Order 6 Rule 17 CPC seeking amendment of

pleadings in the written statement, after closing of the plaintiffs' evidence,

was rejected.

2. Facts of the case, in short, are that the plaintiffs/respondents No.1 to 3

have filed a civil suit for declaration of title, partition, possession,

permanent injunction and for damages of crop in the year 2017. The

petitioner raised an objection that suit is time barred and plaintiffs have

failed to explain as to by which mode father of the plaintiffs had acquired

the right on the suit land. However, after closing of the plaintiffs evidence,

the petitioner has filed an amendment application under Order 6 Rule 17

CPC on the ground that at the time of preparation of defendant evidence,

it came to the notice that forefathers of the plaintiffs had already sold their

share by way of registered sale deed and certain amendment in the

pleadings are necessary for proper adjudication. The trial Court observed

that petitioner has not offered proper explanation for filing of such

application belatedly and that there is no material or ground regarding due

diligence in the application in view of Order 6 Rule 17 and dismissed the

said application by the impugned order.

3. Learned counsel for the petitioner submits that the proposed amendment

is necessary for proper adjudication of the matter and same should be

normally allowed. He submits that it cannot be decided merely on

mechanical way, without giving sufficient reasons. Further, the said Neutral Citation 2024:CGHC:22966

amendment would not change the nature of the suit. He also submits that

while preparing the defendant evidence, it came to the light that certain

pleadings were missed in the written statement. In view of the above, he

prays to allow the petition and to quash the impugned order.

4. Heard learned counsel for the petitioner and perused the impugned order,

plaintiffs' written statement as well as documents filed in the petition

carefully.

5. Order 6 Rule 17 of the Civil Procedure Code, 1908 provides the manner of

amendment of the pleadings (Said Section was amended by Act 22 of

2022 with effect from 01.07.2002) and the same is quoted hereunder 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."

6. In the matter of Rajkumar Gurawara Vs. S. K. Sarwagi and Co. (P)

Ltd.1, the principle with regard to amendment of pleadings at any stage of

proceedings and in the event of completion of evidence has been laid

down, relevant portion of which reads thus:-

"13. To put it clear, Order VI Rule 17 C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage 1 (2008) 14 SCC 364 Neutral Citation 2024:CGHC:22966

of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the 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 proviso."

7. In the matter of Chander Kanta Bansal Vs. Rajinder Singh Anand2it

been observed that in spite of due diligence the party could not have

raised the matter before the commencement of trial depending on the

circumstances, the Court is free to order such application. Following was

observed at Paragraphs 15 and 16:-

"15. As discussed above, though first part of Rule 17 makes it clear that amendment of pleadings is permitted at any stage of the proceeding, the proviso imposes certain restrictions. It makes it clear that after the commencement of trial, no application for amendment shall be allowed. However, if it is established that in spite of "due diligence" the party could not have raised the matter before the commencement of trial depending on the circumstances, the court is free to order such application.

16. The words "due diligence" has not been 2 (2008) 5 SCC 117 Neutral Citation 2024:CGHC:22966

defined in the Code. According to Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (Eighth Edition), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs."

8. Furthermore, in the matter of Basavaraj Vs. Indira3, when the ground was

taken that the pleadings were not made earlier due to oversight, the

Hon'ble Supreme Court categorically held that the same cannot be

accepted as a ground to allow any amendment in the pleadings at the fag

end of trial especially when admittedly the facts were in knowledge of the

plaintiffs and the relief sought by way of amendment was time-barred and

would certainly cause prejudice to the other side. The relevant portion of

the aforesaid judgment are reproduced hereunder for ready reference:-

"10. Proviso to Order VI Rule 17 CPC provides 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. In the case in hand, this is not even the pleaded case of 3 (2024) 3 SCC 705 Neutral Citation 2024:CGHC:22966

respondents No. 1 and 2 before the Trial Court in the application for amendment that due diligence was there at the time of filing of the suit in not seeking relief prayed for by way of amendment. All what was pleaded was oversight. The same cannot be accepted as a ground to allow any amendment in the pleadings at the fag end of the trial especially when admittedly the facts were in knowledge of the respondents No. 1 and 2/plaintiffs.

11. The relevant paragraphs of the application seeking amendment of the plaint are reproduced hereunder:

"2. That, due to over sight and by mistake the Plaintiff was unable to sought relief declaration of decree as null and void and unable to pay required court fee some unavoidable circumstances and the proposed amendment is very essential for deciding the matter in dispute.

3. xxx

4. That, if the proposed amendment is allowed no prejudice will be cause to the other side, on the other hand if it is not allowed then the deponent will be put to great loss and will also leads multiplicity of litigation's. Hence it is just and proper to allow the proposed amendment to meet the ends of justice."(sic) "

9. Reverting back to the present case, in the application filed by the

petitioner/defendant there is no averment to show that in spite of due

diligence amendment has not been sought earlier. However, there cannot be

any dispute that an amendment cannot be claimed as a matter of right, and

under all circumstances. Though normally amendments are allowed in the

pleadings to avoid multiplicity of litigation, the court needs to take into

consideration whether the application for amendment is bona fide or mala Neutral Citation 2024:CGHC:22966

fide and whether the amendment causes such prejudice to the other side

which cannot be compensated adequately in terms of money.

10. Further, the said civil suit has been filed in the year 2017 and the petitioner

has also cross-examined the plaintiff and plaintiffs' witnesses. At this juncture,

question of prejudice to the other party may arise as the petitioner wanted to