The High Court dismissed a writ petition challenging the rejection of an application to amend a written statement. The court held that the petitioner failed to demonstrate due diligence as required under Order 6 Rule 17 CPC and that the amendments were already covered in the pleadings.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Neutral Citation No. - 2023:AHC:139379
Court No. - 1
Case :- MATTERS UNDER ARTICLE 227 No. - 4634 of 2023 Petitioner :- Ramzani And 5 Others Respondent :- Toni Agarwal And Another Counsel for Petitioner :- Divakar Rai Sharma,Ajeet Sharma Counsel for Respondent :- Shekhar Gangal,Govind Kumar Singh (Senior Adv.)
Hon'ble Jayant Banerji,J.
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written statement. By the impugned order dated 6.3.2023, the appellate court has rejected the application for amendment.
“ 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.”
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"28 अ- यह अति� महत्वपू्ቓ� है किक वादी ने अपने वाद प्ቔ में किवशेषकर पैरा स 6 व 8 में स्वयं के प्ቌ में �थाकथिथ� बैनाम किदनांकिक� 03-06-2009 को वाद का आधार कथिथ� कर यह वाद ्ቚस्�ु� किकया है, जबकिक उसके प्ቌ में �थाकथिथ� बैनामा किदनांकिक� 03-062009 का हरकि)ज नहीं है, बቇኌ,क 02-06-2009 का किनष्पाकिद� दशा�या )या है। चूँकिक धारा 47 रजिजस्ट्रेशन एक्ट के अनुसार उ्ሹ कथिथ� बैनामा किदनांकिक� 02-06-2009 का कोई अथि8वचन वादप्ቔ में नहीं किकया )या है और प्ቔावली पर वादी ्ቛारा किदनांक 03-062009 का किनष्पाकिद� कोई कथिथ� बैनामा ्ቚस्�ु� नहीं किकया )या है। अ�ः वादी का वाद मा्ቔ इसी आधार पर किनरस्� किकये जाने योग्य है।
28 ब- यह किक वादी ने यह वाद सही व महቈኚवपू्ቓ� �थ्यों को जानबूझकर थिCपा�े हुए्ቚ )� स्�ु� किकया है, जिजसमें यह �थ्य 8ी वादी ्ቛारा Cुपाया )या है किक वादी का नाम ्ቚ् 8ूकिमधरी के सम्बन्ध में राजस्व अथि8लेखों में दज� नहीं है व उसके �थाकथिथ� हस्�ान्�र्ቓक�ा� ्ቛारा धोखे से ्ቚा् नामांकन आदेश किदनांकिक� 02-02-2009 को किनरस्� कराने की काय�वाही ्ቚति�वादी)्ቓ की ओर से किदनांक 12-06-2009 से किवचाराधीन थी, जो इस वाद के योजिज� किकये जाने वाले समय में 8ी लቇኌम्ब� रही , जिजस पर अन्��ः राजस्व ्ቚातिधकारी के आदेश किदनांकिक� 02-08-2009 ्ቛारा उपरो्ሹ संदቝኌ8� आदेश किदनांकिक� 02-02-2009 किनरस्� कर किदया )या और यह आदेश किदनांकिक� 03-08-2009 माननीय राजस्व परिरषद के किन्ቓ�य किदनांकिक� 29-11-2011 ्ቛारा 8ी यथाव� रहा। अ�ः इस आधार पर 8ी वादी को व��मान वाद योजिज� करने का न �ो किवतिधक अतिधकार है और न ही वादी महत्वपू्ቓ� �थ्यों को जानबूझकर वादप्ቔ में Cुपाने का दोषी होने के कार्ቓ Discretionary Relief स्थायी किनषेधा्ሺा पाने का अतिधकारी है।
28 स- यह किक वादी अथवा उसके �थाकथिथ� हस्�ान्�र्ቓक�ा� ्ቛारा आज �क धारा 229 बी यू०पी० जेड०ए० एण्ड एल०आर० एक्ट अथवा धारा 144 उ 0 0 राजस्व संकिह�ा 2006 के अन्�) � अ8ी �क ्ቚ् )� 8ूकिमधरी कृकिष 8ूकिम के सम्बन्ध में अपने �थाकथिथ� स्व�त्व की घोष्ቓा हे�ु न कोई वाद योजिज� किकया है और न ऐसी घोष्ቓ करायी जबकिक ्ቚ् )� 8ूकिम के recorded tenure holders ्ቚति�वादी)्ቓ के किवरू्ቍ माननीय जिसकिवल न्यायालय को वादी के प्ቌ में ्ቚ् )� 8ूकिमधरी के कथिथ� स्वाकिमत्व की उ्ሾोष्ቓा किकया जाना सम्8व न होने के कार्ቓ वादी का वाद पोष्ቓीय नहीं है। 28 द- यह किक वादी का वाद धारा 49 चकबन्दी अतिधकिनयम से बातिध� है और कानूनन पोष्ቓीय नहीं है।"
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defendant-petitioners were recorded tenure holders and no suit can for permanent injunction can be allowed against them. In the averments in paragraph no. 28, the bar of Section 331 of the U.P.Z.A. and L.R. Act has been mentioned. In paragraph 29 the objection regarding bar under Section 34, 38, and 41 of the Specific Relief Act has been raised.
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written statement and therefore, the aspect of ‘due diligence’ would not be applicable in the instant case. Qualifying the aspect of ‘due diligence’ appearing in the proviso to Order 6 Rule 17 to be applicable in the case of amendment by new pleadings and not in the case of amendment only to support pleadings on record, would be to read words into the provision where the provision itself is clear and unambiguous. The purpose of the amendment in Order 6 Rule 17 of the C.P.C. is to curtail delay and expedite hearing of cases and prevent frivolous applications which are filed to delay the trial. The proviso has been added as an exception to balance the interests of the parties in pursuit of doing justice.
“13. 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.”
1 (2008) 5 SCC 117
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14. Further in the case of J. Samuel Vs. Gattu Mahesh2 , it has been observed as follows:
“ 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:
“… 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.”
(emphasis supplied)
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.”
15. In the judgment of Mohinder Kumar Mehra Vs. Roop Rani Mehra3 , the Supreme Court has observed as follows:
“14. By Amendment Act 46 of 1999, with a view to shortage litigation and speed of the trial of the civil suits, Rule 17 of Order 6 was omitted, which provision was restored by Amendment Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to a considerable extent. The object of newly inserted Rule 17 is to control filing of application for amending the pleading subsequent to commencement of trial. Not permitting amendment subsequent to commencement of the trial is with the object that when evidence is led on pleadings in a case, no new case be allowed to set up by amendments. The proviso, however, contains an exception by reserving right of the Court to grant amendment even after commencement of the trial, when it
2 (2012) 2 SCC 300
3 (2018) 2 SCC 132
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is shown that in spite of diligence, the said pleas could not be taken earlier. The object for adding proviso is to curtail delay and expedite adjudication of the cases.
“26. Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment 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 trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision.”
“15. The object of the Rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.
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“11. From the order passed by the learned trial Judge, it is evident that the respondents had not been able to fulfil the said precondition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination-in-chief of the witness, in our opinion, would amount to “commencement of proceeding”.”
Order Date :- 13.7.2023 A. V. Singh
(Jayant Banerji, J.)
Digitally signed by :- AJAY VIKRAM SINGH High Court of Judicature at Allahabad
2 issues framed by the court
Whether the court was justified in rejecting the application to amend the written statement vis-a-vis Order 6 Rule 17 CPC due to lack of due diligence.
Whether the proposed amendments were material and necessary for determining the real questions in controversy between the parties.
Colour shows how this judgement treated each authority
Chander Kanta Bansal Vs. Rajinder Singh AnandReferred¶30
Chander Kanta Bansal Vs. Rajinder Singh Anand (2008) 5 SCC 117 · Who else cites this
J. Samuel Vs. Gattu MaheshReferred¶33
J. Samuel Vs. Gattu Mahesh (2012) 2 SCC 300 · Who else cites this
Mohinder Kumar Mehra Vs. Roop Rani MehraReferred¶40
Mohinder Kumar Mehra Vs. Roop Rani Mehra (2018) 2 SCC 132 · Who else cites this
Salem Advocate Bar Assn. (2) v. Union of IndiaReferred¶45
Salem Advocate Bar Assn. (2) v. Union of India, (2005) 6 SCC 344 · Who else cites this
Rajesh Kumar Aggarwal v. K.K. ModiReferred¶47
Rajesh Kumar Aggarwal v. K.K. Modi, (2006) 4 SCC 385 · Who else cites this
Vidyabai v. PadmalathaReferred¶52
Vidyabai v. Padmalatha, (2009) 2 SCC 409 · Who else cites this
2 provisions across 1 enactments
Ramzani and 5 Others
Toni Agarwal
Another
Jayant Banerji
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
