This writ petition challenged the refusal to amend plaint in Special Civil Suit No.6 of 2017. The High Court upheld the Trial Court's rejection for lack of pleaded due diligence under proviso to Order 6 Rule 17 CPC, dismissing the petition.
Petition dismissed; no costs.
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.
909-wp-6859-2022.doc
Nikita
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6859 OF 2022
Rajmal Alias Rajesh Chandanmal Luniya
and Anr.… Petitioners
V/s.
Pankaj Amrutlal Navalakha and Ors.… Respondents
Digitally NIKITA signed byNIKITAKAILAS KAILAS DARADE DARADE Date:2023.12.15 17:18:07 +0530
Mr. S.L. Vaswani for the Petitioners.
Mr. Mandar Limaye for the Respondent.
CORAM :AMIT BORKAR, J.
DATED:DECEMBER 15, 2023
P.C.:
1.The petitioners are plaintiffs in Special Civil Suit No.6 of
2017 who have filed a suit for declaration that the agreement
dated 30th June 2011 has been cancelled and, therefore, the
agreement is not enforceable. Further relief seeking injunction
against defendants restraining them from taking benefits of
agreement dated 30th June 2011 was sought. Injunction restraining
defendants from disturbing plaintiff’s possession over the suit
property is also sought. The plaintiff also claimed damages.
2.It is not in dispute that the trial commenced in the year
2019.
3.On 17th December 2021, the plaintiff filed an application for
amendment to incorporate relief of possession along with
injunction restraining defendants from creating third party rights.
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4.The Trial Court rejected the application for amendment on
two grounds.
1) The amendment sought is inconsistent.2) Due diligence as required under proviso to Order 6 Rule 17 of the Code of Civil Procedure, 1908 is not pleaded.5.On perusal of the application for amendment, it is evident
that the plaintiff has failed to plead due diligence as required
under proviso to Order 6 Rule 17 of the Code of Civil Procedure,
1908.
6.The law in this regard is settled in view of Judgment in the
case of Vidyabai & Ors. vs. Padmalatha & Anr. reported in
(2009) 2 SCC 409.
“19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.”7.The expression due diligence is interpreted by the Apex
Court in the case of J. Samuel And Others vs. Gattu Mahesh
And Others reported in (2012) 2 SCC 300.The Apex Court in
paragraph No.19 and 20 held as under:
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
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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.”
8. The judgment in the case of Vidyabai & Ors. (supra) has
been consistently followed by the Apex Court thereafter. Recently,
in the case of Pandit Malhari Mahale vs. Monika Pandit
Mahale & Ors. reported in (2020) 11 SCC 549, the Apex Court
set aside the orders passed by the High Court and Trial Court
allowing amendment without recording finding of due diligence as
required under proviso to Order 6 Rule 17 of the Code of Civil
Procedure, 1908. The Apex Court considering the judgment in the
case of Vidyabai & Ors.,( supra)set aside the orders passed by
the Courts below which permitted amendment without recording
finding of due diligence.
9.Therefore, in view of failure to plead due diligence, the Trial
Court has not committed error of jurisdiction by rejecting
application for amendment.
10. The writ petition stands dismissed. No costs.
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2 issues framed by the court
Whether rejection of application for amendment of plaint was erroneous given failure to plead due diligence as per Order 6 Rule 17 CPC.
Whether the Trial Court committed jurisdictional error by disallowing amendment without recording finding of due diligence.
Colour shows how this judgement treated each authority
Vidyabai & Ors. vs. Padmalatha & Anr.Followed¶6
Vidyabai & Ors. vs. Padmalatha & Anr. (2009) 2 SCC 409 · Who else cites this
J. Samuel And Others vs. Gattu Mahesh And OthersFollowed¶7
J. Samuel And Others vs. Gattu Mahesh And Others (2012) 2 SCC 300 · Who else cites this
Pandit Malhari Mahale vs. Monika Pandit Mahale & Ors.Followed¶31
Pandit Malhari Mahale vs. Monika Pandit Mahale & Ors. (2020) 11 SCC 549 · Who else cites this
1 provisions across 1 enactments
Rajmal Alias Rajesh Chandanmal Luniya
Pankaj Amrutlal Navalakha
Amit Borkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court