In this writ petition, the High Court of Bombay dismissed the challenge to the City Civil Court's order rejecting an application to amend a plaint by inserting 22 paragraphs due to lack of due diligence as required under Order 6 Rule 17 of the CPC.
No costs; all interlocutory applications disposed of as infructuous.
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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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8760 OF 2023
Radheshyam Ramlal Dhanuka… Petitioner
V/s.
Alok Jajodia & Ors.… Respondents
Mr Prashant G. Pandey with Mr. Ashish Jain and Ms.
Latika Birje for the petitioner.
Ms. Swati Sawant i/by Ms. Vrishali Raje for respondent
Nos.2 and 3.
CORAM:AMIT BORKAR, J.
DATED:SEPTEMBER 21, 2023
P.C.:
1.By the impugned order, the City Civil Court rejected
application for amendment of the plaint.
2.Learned advocate for the petitioner invited my attention to
the earlier order passed by the Court which refers to liberty
granted to the petitioner to file application for amendment. Based
on such liberty, he filed application for amendment. According to
him, the facts referred in the affidavit in support of the chamber
summons disclose due diligence as contemplated by the proviso to
Order 6 Rule 17 of the Code of Civil Procedure, 1908. According to
him, the Trial Court has not considered the judgment in the case of
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Life Insurance Corporation v. Sanjeev Builders though it
was relied upon by the petitioner.
3.On consideration of the impugned order, it appears that the
Trial Court held that by way of proposed amendment plaintiff
intends to insert 22 paragraphs in the plaint. The plaintiff was
aware about these facts before filing application of amendment;
however, pleadings of due diligence is absent in the affidavit.
4.Learned advocate for the petitioner invited my attention to
at least seven paragraphs in the affidavit. According to him,
explanation furnished in paragraphs 11 to 33 of the affidavit
provides due diligence as contemplated under proviso to Order 6
Rule 17 of the Code of Civil Procedure, 1908.
5.The law in relation to the interpretation of expression “due
diligence” has been delineated by the Apex Court in the case of
Vidya Bai & Ors. v. Padmalatha & Anr. reported in (2009) 2
SCC 409. The Apex Court in the said judgment held that unless the
Court comes to the conclusion that in spite of exercise of due
diligence the party could not have raise matter before
commencement of trial, the amendment cannot be allowed.
6.With the assistance of the learned advocate for the petitioner,
I have considered the explanation furnished by the petitioner in
support of his case of due diligence. The expression “due diligence”
has been interpreted by the Apex Court in the case of J Saumel &
Ors. v. Gattu Mahesh & Ors. reported in 2023 (2) SCC 300.
The Apex Court in paragraphs 19 and 20 observed as under:
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“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.”
7.Having considered the explanation furnished in the affidavit
in support of the amendment application, in my opinion, the
explanation furnished do not fulfill the test laid down by the Apex
Court in J. Samuel & Ors. (supra). On meaningful reading of
the affidavit in support of the proposed amendment, I do not find
any explanation regarding due diligence as required under
provision to Order 6 Rule 17 of the Code of Civil Procedure, 1908.
Therefore, no error can be found in rejecting the amendment
application.
8.According to the learned advocate for the petitioner, the Trial
Court has not considered judgment in the case of Life Insurance
Corporation (supra). Having recorded finding of fact that the
plaintiff has failed to submit any explanation regarding due
diligence, in my opinion, non-consideration of judgment of the
Apex Court will be of no help to the petitioner.
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9.In my opinion, while considering the explanation as regards
due diligence same needs to be provided either in an application
for amendment or in the affidavit in support of the chamber
summons. In absence of both, the paragraphs of the plaint cannot
be considered to interpret due diligence. Even otherwise also
having considered the said paragraphs, I find that there is no due
diligence in the said paragraphs.
10. On overall consideration of the facts of the case, I do not find
any error in the exercise of discretion by the Trial Court.
11. There is no merit in the writ petition. The writ petition is
dismissed. No costs.
12. In view of dismissal of the petition, all interlocutory
applications does not survive and are disposed of as infructuous.
(AMIT BORKAR, J.)
Note:- This order is modified as per order dated 4th October 2023. The correction in
paragraph No. 12 is shown in italicize.
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2 issues framed by the court
Whether the proposed amendment to the plaint satisfies the requirement of due diligence under the proviso to Order 6 Rule 17 of the CPC.
Whether the High Court committed any error in upholding the City Civil Court's order rejecting the application for amendment of plaint.
Colour shows how this judgement treated each authority
Vidya Bai & Ors. v. Padmalatha & Anr.Followed¶5
(2009) 2 SCC 409 · Who else cites this
J Saumel & Ors. v. Gattu Mahesh & Ors.Followed¶6
2023 (2) SCC 300 · Who else cites this
1 provisions across 1 enactments
Radheshyam Ramlal Dhanuka
Alok Jajodia
Amit Borkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court