Dismissed

Madhaw Asharam Chairitable Trust Hanuman Mandir and Another v. Shri Shamshul Khuda Khan

Allahabad HC7 Aug 2019WRIC/16842/2014

Case brief

AI extract

What is this about?

The Court rejected a petition seeking writ jurisdiction via Article 226 against a civil court's order. It held judicial orders of civil courts are not amenable to certiorari, relying on Order VI Rule 17 principles for amendment and noting the respondent's death. The petition was dismissed for lack of merit.

What did the court decide?

The writ petition was dismissed as non-maintainable and lacking merit.

Madhaw Asharam Chairitable Trust Hanuman… — Civil Procedure and Limitation | Allahabad HC (2019)

AFR

Court No. - 3

Case :- WRIT - C No. - 16842 of 2014

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Petitioner :- Madhaw Asharam Chairitable Trust Hanuman Mandir And Another Respondent :- Shri Shamshul Khuda Khan Counsel for Petitioner :- Vijay Shankar Singh Counsel for Respondent :- S.C.,Hridaya Narain Mehrotra,Maha Prasad,Nitin Sharma,Syed Farman Ahmad Naqvi

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Hon'ble Dr. Yogendra Kumar Srivastava,J.

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Heard Sri Pankaj Dwivedi, Advocate holding brief of Sri Vijay Shankar Singh, learned counsel for the petitioners and Sri Utpal Chatterji, learned counsel appearing for the legal representatives of the sole respondent (deceased).

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Counsel for the parties have agreed that the petition may be disposed of at the stage of admission.

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By means of the present petition filed under Article 226 of the Constitution of India a writ in the nature of certiorari has been sought for quashing the order dated 04.12.2013 passed by the Additional District Judge, Meerut in Civil Appeal No.14 of 2011 whereby the amendment application (Application No.94Ka) has been rejected.

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The order impugned records that the amendment sought at the stage of appeal would have the effect of changing the very nature of the suit and for the said reason the amendment application has been rejected.

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Contention of the counsel for the petitioners is that by means of the amendment application a typographical error was sought to be rectified and as such the same ought to have been allowed in the interest of justice.

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Sri Utpal Chatterji, learned counsel for the legal heirs of the sole respondent submits that the amendment which was

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being sought at the stage of appeal would change the very nature of the suit and as such the same has rightly been rejected by the court below. Moreover, it is submitted that in view of the proviso to Order XVI, Rule 17 the amendment was not permissible in the absence of the petitioners being able to show that in spite of due diligence they could not have raised the matter before the commencement of trial. Reliance in this regard has been placed on the judgments in the case of M. Revanna Vs. Anjanamma & Ors.¹ , Vijay Hathising Shah & Anr. Vs. Gitaben Parshottamdas Mukhi & Ors.² .

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It is further submitted that the present petition filed under Article 226 of the Constitution against a judicial order would not be maintainable in view of the law laid down in the case of Radhey Shyam & Anr. Vs. Chhabi Nath & Ors.³ .

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The rival contentions which fall for consideration relate to the scope of the powers of the Court to allow amendment of pleadings under Order VI Rule 17 of the Civil Procedure Code, 1908⁴ .

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The purpose and object of rules relating to pleadings being to decide the real controversy between the parties and not to punish them for their negligence, the provisions relating to the amendment of pleadings are usually to be liberally construed with a view to promoting the ends of justice and not for defeating them, and consequently the courts generally allow all amendments that may be necessary for determining the real question in controversy between the parties.

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The proviso to Rule 17 under Order VI, as inserted by the Code of Civil Procedure (Amendment) Act, 2002, however, restricts and curtails the power of the court to allow amendment

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1 (2019) 4 SCC 332

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2 (2019) 5 SCC 360

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3 (2015) 5 SCC 423

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4 CPC

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of pleadings by enacting that no application for amendment is to 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 the trial.

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The proviso to Rule 17, as per the Amendment Act, 2002, has introduced the "due diligence" test, which requires that the court must be satisfied that in spite of "due diligence" the party could not discover the ground pleaded in the amendment. The term "due diligence" has been specifically used so as to provide a test for determining whether to exercise the discretion in situations where amendment is being sought after commencement of the trial.

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The object of introducing the proviso to Rule 17 was considered in the case of Chander Kanta Bansal Vs. Rajinder Singh Anand⁵ , and it was held as follows:-

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“11. ...The proviso limits the power to allow amendment after the commencement of trial but grants discretion to the court to allow amendment if it feels that the party could not have raised the matter before the commencement of trial in spite of due diligence. It is true that the power to allow amendment should be liberally exercised. The liberal principles which guide the exercise of discretion in allowing the amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be granted, while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon the opposite party under pretence of amendment.

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With a view to shorten the litigation and speed up the trial of cases Rule 17 was omitted by amending Act 46 of 1999. This rule had been on the statute for ages and there was hardly a suit or proceeding where this provision had not been used. That was the reason it evoked much controversy leading to protest all over the country. Thereafter, the Rule was restored in its original form by amending Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to some extent. The new proviso lays down that no application for amendment shall be allowed after the commencement of trial, unless the court comes to the conclusion that in spite of due

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5 (2008) 5 SCC 117

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diligence the party could not have raised the matter before the commencement of trial. But whether a party has acted with due diligence or not would depend upon the facts and circumstances of each case. This would, to some extent, limit the scope of amendment to pleadings, but would still vest enough powers in courts to deal with the unforeseen situations whenever they arise.

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The entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the other's case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases.

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x x x x x

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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.

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The words "due diligence" has not been 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 (18th 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 13-A) "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.

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It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial....”

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The provisions contained under Order VI Rule 17 proviso

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as introduced in the year 2002 again came up for consideration in the case of J. Samuel Vs. Gattu Mahesh & Ors.⁶ wherein the principles relating to allowing amendments under Order VI Rule 17 were reiterated and the object of the proviso and the meaning and significance of "due diligence" of the parties seeking amendment was also stated. The observations made in the judgment in this regard as follows:-

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"18. The primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The court's discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. However, to balance the interests of the parties in pursuit of doing justice, the proviso has been added which clearly states that:

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"...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."

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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.

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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.

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x x x x x

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...The entire object of the amendment to Order VI Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other's case. It also helps checking the delays in filing the applications. [Vide Aniglase Yohannan v. Ramlatha [(2005) 7 SCC 534], Ajendraprasadji N. Pandey v. Swami

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6 (2012) 2 SCC 300

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Keshavprakeshdasji N. [(2006) 12 SCC 1], Chander Kanta Bansal v. Rajinder Singh Anand [(2008) 5 SCC 117], Rajkumar Gurawara v. S.K. Sarwagi and Co. (P) Ltd. [(2008) 14 SCC 364], Vidyabai v. Padmalatha [(2009) 2 SCC 409 : (2009) 1 SCC (Civ) 563] and Man Kaur v. Hartar Singh Sangha [(2010) 10 SCC 512 : (2010) 4 SCC (Civ) 239]."

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Reference may also be had to the judgment in the case of Revajeetu Builders and Developers Vs. Narayanaswami and Sons & Ors.⁷ wherein some of the important factors which may be kept in mind while dealing with an application filed under Order VI Rule 17 have been enumerated in the following terms:-

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"63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

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(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

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(2) whether the application for amendment is bona fide or mala fide;

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(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

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(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

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(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

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(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

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These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.

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The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."

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In a recent judgment in the case of M. Revanna Vs. Anjanamma & Ors.¹ , it has been held that after commencement of trial amendment of pleadings is not permissible except under conditions stated in the proviso and the burden is on the person

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7 (2009) 10 SCC 84

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1 (2019) 4 SCC 332

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seeking the amendment after commencement of trial to show "due diligence" on his part as contemplated under the proviso. The relevant observations in the judgment are as follows:-

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"7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from being 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 the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. 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 fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money."

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A similar view was taken in the case of Vijay Hathising Shah & Anr. Vs. Gitaben Parshottamdas Mukhi & Ors.² wherein the order passed the High Court setting aside the order of the Trial Court rejecting the amendment application was held to be unsustainable and the order of the Trial Court was restored. The observations made in the judgment are as follows:-

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“9. In our view, the trial court was right in rejecting the application. This we say for more than one reason. First, it was wholly belated; second, Respondent 1-plaintiff filed the application for amendment of the plaint when the trial in the suit was almost over and the case was fixed for final arguments; and third, the suit could still be decided even without there being any necessity to seek any amendment in the plaint. In our view, amendment in the plaint was not really required for determination of the issues in the suit.”

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The aforementioned legal position has been reiterated in a recent judgment of this Court in the case of Hari Narayan Vs. Shanti Devi⁸ .

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8 S.C.C. Revision Defective No.49 of 2019, decided on 28.05.2019

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2 (2019) 5 SCC 360

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As regards the question as to whether an amendment can be allowed when it introduces a totally different or a new case, it is relevant to reiterate the legally settled position that leave to amend would be refused if it introduces a totally different, new and inconsistent case or changes the fundamental character of the suit. Reference in this regard may be had to the judgment of the Privy Council in the case of Ma Shew Mya Vs. Maung Mo Hnaung⁹ :-

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“...All rules of Court are nothing but provisions intended to secure the proper administration of justice and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but none the less no power has yet been given to enable one distinct cause of action to be substituted for another, not to change, by means of amendment, the subject-matter of the suit.”

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In the case at hand, the court below upon due consideration of the facts of the case has come to the conclusion that the amendment which was being sought, at the stage of appeal, would have the effect of changing the very nature of the case, and the application for amendment having been rejected for the said reason, the order passed by the Trial Court cannot be faulted with.

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As regards the other objection raised by the respondent with regard to the maintainability of the writ petition under Article 226 of the Constitution, it may be noted that in view of the authoritative pronouncement made in the case of Radhey Shyam & Anr. Vs. Chhabi Nath & Ors.³ judicial orders passed by civil courts are not amenable to a writ of certiorari under Article 226, and for this reason also the writ petition which has been filed against a judicial order passed in a pending civil appeal, would fail. The relevant observations made in the aforementioned judgment of Radhey Shyam (supra) are as follows:-

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9 AIR 1922 PC 249

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3 (2015) 5 SCC 423

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"25. It is true that this Court has laid down that technicalities associated with the prerogative writs in England have no role to play under our constitutional scheme. There is no parallel system of King's Court in India and of all other courts having limited jurisdiction subject to supervision of King's Court. Courts are set up under the Constitution or the laws. All courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227. Writ jurisdiction is constitutionally conferred on all High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of tribunals or authorities or courts other than judicial courts. There are no precedents in India for High Courts to issue writs to subordinate courts. Control of working of subordinate courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227. Orders of civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts. While appellate or revisional jurisdiction is regulated by statutes, power of superintendence under Article 227 is constitutional. The expression "inferior court" is not referable to judicial courts, as rightly observed in the referring order in paras 26 and 27 quoted above.

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The Bench in Surya Dev Rai v. Ram Chander Rai [(2003) 6 SCC 675] also observed in para 25 of its judgment that distinction between Articles 226 and 227 stood almost obliterated. In para 24 of the said judgment distinction in the two articles has been noted. In view thereof, observation that scope of Article 226 and 227 was obliterated was not correct as rightly observed by the referring Bench in Para 32 quoted above. We make it clear that though despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected, it has been wrongly assumed in certain quarters that the said jurisdiction has been expanded. Scope of Article 227 has been explained in several decisions including Waryam Singh v. Amarnath [AIR 1954 SC 215 : 1954 SCR 565], Ouseph Mathai v. M. Abdul Khadir [(2002) 1 SCC 319], Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329 : (2010) 3 SCC (Civ) 338] and Sameer Suresh Gupta v. Rahul Kumar Agarwal [(2013) 9 SCC 374 : (2013) 4 SCC (Civ) 345]. In Shalini Shyam Shetty this Court observed: (SCC p. 352 paras 64-67)

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"64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions under

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Article 227 over such disputes and such petitions are treated as writ petitions.

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We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority.

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We may also observe that in some High Courts there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding the High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.

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As a result of frequent interference by the Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon'ble High Court will follow the time-honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice within their jurisdiction will adhere to them strictly."

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Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226.

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x x x x x

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Accordingly, we answer the question referred as follows: 29.1. Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution.

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29.2. Jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction under Article 226."

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Counsel for the petitioners has not been able to dispute the aforementioned legal position and has also not been able to point out any material error or illegality in the order passed by the court below so as to warrant interference.

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It has also been pointed out that the sole respondent has died on 07.01.2018 and no steps have been taken by the petitioners to cause the legal representatives of the deceased respondent to be made a party in the proceedings.

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The petition thus lacks merit and is accordingly dismissed. Order Date :- 7.8.2019 Shahroz

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(Dr. Y.K. Srivastava,J.)

Madhaw Asharam Chairitable Trust Hanuman Mandir and Another v. Shri Shamshul Khuda Khan

Case brief

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Madhaw Asharam Chairitable Trust Hanuman Mandir and Another v. Shri Shamshul Khuda Khan

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