Delhi High Court
Smt Sarita Ravi vs Nisha Taneja on 17 November, 2022
Neutral Citation Number : 2022/DHC/005019
$~62
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1123/2022 & CM APPL. 45347/2022, CM APPL.
45348/2022
SMT SARITA RAVI ..... Petitioner
Through: Mr. Lalit Bhardwaj, Mr. J.K.
Verma, Mr. Jatin Anand Dwivedi and Mr.
Rohan Rishi Bhatnagar, Advs.
versus
NISHA TANEJA ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
JUDGMENT (ORAL)
% 17.11.2022
1. This petition, under Article 227 of the Constitution of India,
assails order dated 3rd January 2022 passed by the learned Civil Judge
in CS 84960/2016 (Nisha Taneja v. Sarita Ravi). By the said order,
the learned Civil Judge has dismissed two applications preferred by
the defendant under Section 151 of the Code of Civil Procedure, 1908
(CPC).
2. Though both applications were preferred under Section 151, the
learned Civil Judge has treated them as applications under Order VI
Rule 17 and Order XVIII Rule 17 of the CPC, inasmuch as the first
application sought to amend the written statement and the second
application sought permission to recall PW-1 for cross-examination.
3. Mr. Lalit Bhardwaj, learned Counsel for the petitioner, submits,
at the very outset, that the second application under Order XVIII Rule
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:22.11.2022
13:22:12
Neutral Citation Number : 2022/DHC/005019
17 of the CPC would survive for consideration only if the first
application under Order VI Rule 17, seeking amendment in the written
statement, were to be allowed.
4. As such, the occasion for this Court to examine the impugned
order qua the second application under Order XVIII Rule 17 of the
CPC would arise only if the court were to find the impugned order to
be vulnerable to challenge insofar as it rejects the petitioner's
application under Order VI Rule 17 of the CPC.
5. For the purposes of the present order, it is not necessary to enter
into the details of the controversy between the parties.
6. Suffice it to state, therefore, that, consequent to completion of
pleadings, issues were framed in the suit by the learned Civil Judge on
8th March 2017, whereafter trial commenced. Recording of the
evidence of the respondent, as the plaintiff in the suit, concluded on
17th August 2019. The matter was, thereafter, pending for recording of
the evidence of the petitioner, as the defendant in the suit, when, on 5th
April 2021, the application for amending the written statement was
filed by the petitioner.
7. The necessity to amend the written statement, as per the
application filed by the petitioner, was because the written statement,
as originally filed, did not specifically traverse the assertions in the
plaint. The petitioner, therefore, sought, by the amend, to introduce
specific traversals to the factual and legal assertions in the plaint filed
by the defendant. Clearly, therefore, the amendments were
substantive, and not merely in the nature of formal or procedural
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By:SUNIL SINGH NEGI
Signing Date:22.11.2022
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Neutral Citation Number : 2022/DHC/005019
changes.
8. As the learned Civil Judge has correctly held, therefore, the
application would have to be examined in the light of the proviso to
Order VI Rule 17.
9. Order VI Rule 17 of the CPC 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."
10. As the application of the petitioner for amendment of the
written statement was filed after commencement of trial, the petitioner
was required, in the application, to show, positively, that the averment
which was sought to be included by way of amendment could not be
raised before commencement of trial despite due diligence. In other
words, the petitioner would have to establish the existence of two
ingredients, viz., that (i) there was exercise, by her, of due diligence,
and (ii) despite such exercise of due diligence, the averments which
were sought to be included by way of the amendment could not have
been raised prior to commencement of trial. The occasion to establish
the second ingredient would arise only if, in the first place, the first
ingredient was found to exist.
11. For this, one needs to turn to the application filed by the
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By:SUNIL SINGH NEGI
Signing Date:22.11.2022
13:22:12
Neutral Citation Number : 2022/DHC/005019
petitioner for amendment of the written statement, which may be
reproduced, in extenso, thus:
"APPLICATION UNDER SECTION 151 CPC FOR
AMENDMENT OF WRITTEN STATEMENT /PLEADING ON
BEHALF OF DEFENDANT.
MOST RESPECTFULLY SHOWETH:
1. That the above said suit is pending adjudication before this
Hon'ble court and is fixed for today.
2. That the defendant has engaged the undersigned Advocate
to defend her case.
3. That on perusal of the written statement the undersigned
counsel of the defendant has found that plain denial of the plaint
has been made, no specific denial as per provisions of Civil
Procedure Code has been done, proper pleadings to defend the
defendant have remained untouched. It was done by previous
counsel of the defendant.
4. That under the above circumstances the amendment of the
written Statement is required filed earlier on behalf defendant is
necessary to impart justice to her (defendant).
5. That in case the defendant is not allowed to amend her
previous Written statement, she shall suffer irreparable loss and
injury.
6. That the application moved by the defendant is bonafide
and in the interest of justice.
PRAYER:
It is, therefore, most humbly prayed that the
applicant/defendant may kindly be allowed to amend the Written
Statement/pleadings in the interest of justice."
12. A bare reading of the amendment application reveals that, leave
alone pleading the existence of any due diligence, despite which the
amendments which were proposed to be incorporated could not have
been advanced prior to trial, the application does not even provide a
cause for the amendments not having been earlier advanced. The
application for amendment of the written statement does not even
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By:SUNIL SINGH NEGI
Signing Date:22.11.2022
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Neutral Citation Number : 2022/DHC/005019
explain why the averments which were now being sought to be
incorporated could not have been earlier filed. Needless to say, there
is no question of pleading, in the said application, either of the
existence of any due diligence or of any inability to raise the said
averments despite exercise of due diligence.
13. In such circumstances, the learned Civil Judge was perfectly
justified in refusing to allow the amendment of the written statement
as sought.
14. No occasion, therefore, arises for this Court to interfere with the
impugned order in exercise of jurisdiction vested in it by Article 227
of the Constitution of India.
15. This petition is accordingly dismissed in limine.
16. Needless to say, this Court has not examined the merits of the
case and no observation contained in the present order should
influence the proceedings in the suit in any other regard.
C. HARI SHANKAR, J
NOVEMBER 17, 2022
dsn
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:22.11.2022
13:22:12
