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CASE NO.: Appeal (civil)  1893 of 2008

PETITIONER: Chander Kanta Bansal

RESPONDENT: Rajinder Singh Anand

DATE OF JUDGMENT: 11/03/2008

BENCH: Dr. Arijit Pasayat & P. Sathasivam

JUDGMENT: JUDGMENT

CIVIL APPEAL NO.   1893 OF 2008 (Arising out of SLP (C) No. 6892 OF 2007)

P. Sathasivam, J.

1)      Leave granted.  2)      This appeal is directed against the order dated  22.11.2006 passed by the learned single Judge of the High  Court of Delhi in C.M. (Main) No. 136 of 2005 whereby the  High Court allowed the petition filed by the respondent herein.

3)      Brief facts:  The appellant and the respondent, being members of Adarsh  Bhawan House Building Cooperative Society, Delhi were  jointly allotted a plot bearing No. 13/20, Punjabi Bagh  Extension, New Delhi admeasuring 426 sq. yds. vide perpetual  lease deed dated 12.05.1981.   After the allotment, the plot  was partitioned with the mutual consent of the parties.  The  front portion was allotted to the appellant and the back  portion was allotted to the respondent.  The appellant raised  construction in the year 1983 and completed the same in the  year 1984. The respondent also started raising the  construction on the back portion and completed the same in  the year 1985.  Both the parties were in use and occupation of  their respective portions of the property after the respective  construction.    In the year 1986, the respondent herein filed a  suit for mandatory injunction being Suit No. 261 of 1986  alleging that the drive way, which is 10’ wide from gate facing  30’ road upto the road facing 15’ vide service lane at the back,  has been encroached upon by the appellant and the appellant  is not permitting him to use the drive way.  Written statement  was filed and the witnesses were examined. On 12.5.2004, the  appellant herein filed an application under Order VI Rule 17  read with Section 151 CPC for amendment of written  statement and sought the permission of the Court to file a  written agreement executed between the parties on 10.9.1982.   The respondent herein filed a reply to the application denying  the execution of the agreement and claimed that the same is  forged and fabricated document.  The trial Court, after hearing  the arguments, allowed the amendment application on  18.11.2004.  Against that order, the respondent herein filed a  C.M.(Main) No. 136 of 2005 before the High Court of Delhi.     By order dated 22.11.2006, the High Court allowed the  petition and set aside the order passed by the trial Court on  18.11.2004 in the amendment application.  Aggrieved by the  said order, the appellant preferred the present appeal by way

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of special leave before this Court. 4)      Heard Mr. Ranjit Kumar, learned senior counsel  appearing for the appellant and Mr. Altaf Ahmed, learned  senior counsel appearing for the respondent.  5)      The respondent herein (plaintiff) filed a suit No. 261 of  1986 on the file of Senior Sub-Judge, Delhi praying a decree  for mandatory injunction against the defendant (appellant- herein) to remove all obstructions at point "X" and lock at  point "Y" in the site plan of the property No. 13/20, Punjabi  Bagh Extn. New Delhi and also not to put the lock at main  gate of the property.  In the same prayer, the plaintiff has  prayed that the defendant may further be directed not to  obstruct the plaintiff, his family members or relations from  using the common drive way from point "Y" to "Z" in the site  plan.  The said suit was filed on 23.05.1986, the defendant  filed a written statement even in the year 1986 itself.  While  so, on 12.05.2004, the defendant filed an application for  amendment of written statement under Order VI Rule 17 read  with Section 151 CPC.  The main reason for seeking the  amendment in the written statement is that the defendant is  the house wife and earlier was assisted by his son, namely,  Sunit Gupta, who was a Chartered Accountant.  He died at the  young age i.e. in 1998.  According to the defendant, he was  following the litigation and the document/agreement  pertaining to the parties was in his custody.  Only her another  son, namely, Navneet Agrawal searched the  papers/documents of his brother Sunit Gupta and located an  agreement dated 10.09.1982.  Since the said agreement is   material one and has a bearing on the dispute between the  parties and the execution of the same is admitted by the  plaintiff, her application may be allowed by permitting the  defendant to raise the plea of the agreement dated 10.09.1982  is her written statement and mark the same as a document of  the defendant.  6)      The said application was resisted by the plaintiff by filing  an objection.  It was stated that the suit was filed by the  plaintiff in the month of May, 1986 and after more than 18  years, the present application has been moved with a view to  frustrate the claim of the plaintiff.  The trial has completed  and after the final arguments when the defendant came to  know that she is going to lose her case she is changing her  stance by filing the present application for amendment in the  written statement.  It was further stated that the alleged  agreement/partition dated 10.09.1982, which itself is not  admissible in the eye of law wince it is a forged document and  on the basis of the said document, the proposed amendment  cannot be allowed.  7)      The Civil Judge, based on the claim of both the parties,  particularly accepting the explanation offered by the defendant  allowed the said application and permitted the defendant to  incorporate the proposed amendments in the written  statement on payment of cost of Rs.3,000/-.  Questioning the  said order, the plaintiff has filed a C.M. (Main) No. 136 of 2005  before the High Court of Delhi.  On going through the entire  materials and details, namely, filing of the suit in the year  1986, the application for amendment of written statement filed  only in 1994 and of the fact that nothing has been stated in  the written statement as well as in her evidence by the  impugned order set aside the order of the trial Court and  rejected the application filed by the defendant seeking to  amend the written statement.  Aggrieved by the said order of  the High Court, the defendant has filed the above appeal by  way of special leave.  8)      In order to find out whether the application of the  defendant under Order VI Rule 17 for amendment of written

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statement is bonafide and sustainable at this stage or not, it is  useful to refer to the relevant provisions of CPC.  Order 6 Rule  17 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." This rule was omitted by the Code of Civil Procedure  (Amendment) Act, 1999.  However, before the enforcement of  the Code of Civil Procedure (Amendment) Act, 1999, the  original rule was substituted and restored with an additional  proviso.  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.  9)      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 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.   10)     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 others 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.  11)     Keeping the above broad principles in mind, let us  ascertain whether the defendant has justiciable cause to file  an application praying for amendment of a written statement

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for bringing an agreement dated 10.09.1982.  We have already  referred to the fact that the plaintiff had approached the court  seeking a decree for mandatory injunction as early as on 1986.   We also refer to the fact that within a short duration i.e. in  1986 itself, the defendant has filed a written statement.   Absolutely, there is no whisper about the prior partition  agreement dated 10.09.1982.  No doubt, in the application for  amendment, it was stated that her son who is a Chartered  Accountant all along was looking after this suit and he died in  the year 1998.  It is also available from the very same  application that apart from her first son, namely, Sunit Gupta,  defendant has another son by name Navneet Agarwal.   Admittedly, the son who looking after the suit was none else  than a Chartered Accountant.  In such circumstances, if the  alleged agreement dated 10.09.1982 between the plaintiff and  defendant was in existence nothing prevented her son,  Chartered Accountant, to bring it to the notice of her counsel  and refer it in the written statement filed in the year 1986.  It  is relevant to mention that in the reply, the plaintiff has  specifically denied the same and asserted that the alleged  agreement/partition deed dated 10.09.1982 is a forged  document and based on the same, the proposed amendment  cannot be allowed.  It is also not in dispute and best known to  both parties the suit which is of the year 1986 came to be  taken up for trial only in 2004 and admittedly on the date of  filing of the petition for amendment, the trial was on the verge  of completion.  It was brought to our notice that both sides  have closed their evidence and completed their argument, but  only at this stage the defendant filed the said application for  amendment of her written statement.  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.  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 (Eighth 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 13A) "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. It is clear that unless the party  takes prompt steps, mere action cannot be accepted and file a  petition after the commencement of trial.  As mentioned  earlier, in the case on hand, the application itself came to be  filed only after 18 years and till the death of her first son Sunit  Gupta, Chartered Accountant, had not taken any step about  the so-called agreement.  Even after his death in the year  1998, the petition was filed only in 2004.  The explanation  offered by the defendant cannot be accepted since she did not  mention anything when she was examined as witness.  12)     As rightly referred to by the High Court in Union of  India vs. Pramod Gupta (dead) by LRs and Others, (2005)

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12 SCC 1, this Court cautioned that delay and laches on the  part of the parties to the proceedings would also be a relevant  factor for allowing or disallowing an application for  amendment of the pleadings.  13)     As observed earlier, the suit filed in the year 1986 is for a  right of passage between two portions of the same property  dragged for a period of 21 years.  In spite of long delay, if  acceptable material/materials placed before the court show  that the delay was beyond their control or diligence, it would  be possible for the court to consider the same by  compensating the other side by awarding cost.  As pointed out  earlier, when she gave evidence as D.W.1, there was no  whisper about the written document/partition between the  parties.  On the other hand, she asserted that partition was  oral.  Now by filing the said application, she wants to retract  what she pleaded in the written statement, undoubtedly it  would deprive the claim of the plaintiff.  We are also satisfied  that she failed to substantiate inordinate delay in filing the  application that too after closing of evidence and arguments.   All these aspects have been considered by the High Court.  We  do not find any ground for interference in the order of the High  Court, on the other hand, we are in entire agreement with the  same.  14)     In the light of the above discussion, the appeal fails and  the same is dismissed.  No costs.  It is made clear that we have  not expressed anything on the stand taken by both parties in  the suit and it is for the trial Court to dispose of the same  uninfluenced by any of the observation made above within a  period of three months from the date of receipt of copy of this  judgment.