IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 7178 of 2009 (O&M) Date of decision: March 28, 2011 Tejinder Singh .. Petitioner Vs. Surjit Rai and another .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. M.L. Sarin, Sr. Advocate with Ms. Alka Sarin, Advocate for the petitioner. Mr. Mandeep Sachdeva, Advocate for respondent No.1. A.N. Jindal, J This petition assails the order dated 10.11.2009 (Annexure P/9) passed by the Civil Judge (Sr. Division), Jalandhar accepting the application for amendment of the plaint. The petitioner- defendant No.2 and defendant No.1 (respondent No.2 in this petition) are brothers. Surjit Rai plaintiff- respondent No.1 is the attorney of the defendant No.1 (respondent No.2 in this petition), vide registered power of attorney dated 25.4.2003. On 3.4.2004, the plaintiff had filed a suit for possession by way of specific performance of the agreement to sell dated 28.4.2003. According to him, the defendants had agreed to sell the land measuring 50 marlas in village Sansarpur, Tehsil and District Jalandhar as also SCF No.56, Phase 3B-II, SAS Nagar Mohali for a total sale consideration of `35 lacs, out of which `10 lacs had been paid as an earnest money. There was some dispute between the defendants No.1 and 2 with regard to the property bearing No. SCF No.56, Phase 3B-II, SAS Nagar Mohali and that the same had been resolved vide an agreement dated 27.4.2003. As such, the agreement dated 27.4.2003 was also annexed with the agreement to sell dated 28.4.2003 between the plaintiff and the defendants No.1 and 2. Earlier, the plaintiff had pleaded in the suit that both the agreements were executed at Jalandhar and were signed by the plaintiff and the defendant No.2 and the witnesses were taken by the defendant No.2 for getting them signed by defendant No.1 who lives in Civil Revision No. 7178 of 2009 (O&M) -2- *** Germany by sending them to Germany. The defendant No.1 filed written statement admitting the claim of the plaintiff. However, the defendant No.2 contested the suit, denied the execution of the agreements and took the precise stand in the written statement that the agreement dated 27.4.2003 and 28.4.2003 were fabricated and forged documents. The trial court had framed the issues and adjourned the case for evidence. In support of his pleas, the plaintiff filed affidavits of six witnesses. However, on 15.6.2009, the plaintiff filed an application for amendment of the plaint with request to delete the previous para No.4 of the plaint and introduce a new para No.4 in its place. I need to reproduce both the paras. Para No.4 of the original suit reads as under :- “4. That after purchase of the stamp papers, both the agreements were to be written and typed and it was agreed that the same will be got written and typed and executed by the plaintiff and defendant No.2 at Jalandhar and the same would be sent to the defendant No.1 for his signatures in Germany because he had to leave for Germany positively on 28.4.2003 in the morning. Accordingly, both these agreements were executed i.e. one between the defendant No.1 and 2 at Jalandhar on 27.4.2003 and the other agreement between the plaintiff and defendants No.1 and 2 was executed on 28.4.2003. Both these documents were signed by the plaintiff and the defendant No.2 in the presence of witnesses who also signed the same and they were taken by defendant No.2 for getting it signed from defendant No.1 to send the same to defendant No.1 for signatures at Germany. Accordingly, both these agreements were taken by defendant No.2 after having been executed at Jalandhar and signed by the plaintiff and the defendant No.2 and the witnesses after the same were signed by defendant No.1, they were turned to the plaintiff by defendant No.2.” Civil Revision No. 7178 of 2009 (O&M) -3- *** The proposed amended para No.4 of the plaint reads as under : “That after purchase of the stamp papers, both the agreements were to be written and typed and it was agreed that the same would be got typed and executed by the defendant No.1 and defendant No.2 at Jalandhar. However, the agreement dated 27.4.2003, copy of which has already been produced on record, was duly executed between the plaintiffs, defendant No.1 and defendant No.2 at Jalandhar but because the defendant No.1 was to go to Germany and his flight was for the same night, so before execution of the agreement dated 28.4.2003, the defendant No.1 left for New Delhi and stated that the second agreement be got written or typed and executed by the plaintiff and defendant No.2 at Jalandhar and thereafter, the same would be sent to the defendant No.1 for his signatures in Germany. Accordingly, the agreement dated 27.4.2003 was duly executed between the parties and the second agreement dated 28.4.2003 was signed by the plaintiff and the defendant No.2 at Jalandhar in the presence of the witnesses who also signed the same and then the same was taken by the defendant No.2 for getting it signed from defendant No.1 by sending the same to defendant No.1 for signatures at Germany. The agreement dated 28.4.2003 was duly signed by defendant No.1 at Germany and was thereafter sent back to the plaintiff.” The dispute between the parties revolves around two agreements dated 27.4.2003 and 28.4.2003. Both are of different dates. The agreement dated 27.4.2003 was executed between the plaintiff and the defendants No.1 and 2 at Jalandhar and the other agreement between the plaintiff and the defendants No.1 and 2 was executed on 28.4.2003. Both the agreements bear the signatures of plaintiff and the defendants No.1 and 2. If the original para No.4 in the plaint is compared with the proposed amended para No.4, then it comes out that the plaintiff wants to amend that Civil Revision No. 7178 of 2009 (O&M) -4- *** the agreement dated 27.4.2003 was duly executed between the plaintiff and the defendants No.1 and 2 at Jalandhar, but before execution of the agreement dated 28.4.2003, the defendant No.1 left for New Delhi and stated the second agreement be got typed and executed by the plaintiff and the defendant No.1 at Jalandhar and thereafter the same be sent to him for his signatures in Germany. Accordingly, the same was sent and it was received back by the plaintiff with the signatures of the defendant No.1. From the bare reading of the agreements, facts speak for themselves. The agreement dated 28.4.2003 bears a reference of agreement dated 27.4.2003. Since the defendant is a signatory to the agreement dated 27.4.2003. This agreement whether signed by the defendant No.1 at Jalandhar or at Germany hardly matters. The plaintiff actually wants to amend that the agreement dated 28.4.2003 was signed by him and the defendant No.2 at Jalandhar and it was sent to the defendant No.1 at Germany for getting it signed by defendant No.1. In this way, he only wants to clarify the things which are also apparent from the agreements themselves. The amendment does not prejudice the rights of the defendant No.2 as he has admitted the claim of the plaintiff and clearly stated the facts at the time of filing written statement much before filing of the application by the present applicant. It appears that confusion was created on account of the execution of two agreements. However, the amendment sought by the plaintiff does not change the nature of the case or the relief claimed and does not cause any prejudice to the petitioner as he has totally denied the execution of the agreements. Now coming to the legal aspect of the case, it would be essential to reproduce Order VI Rule 17 CPC, which reads as under :- “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 Civil Revision No. 7178 of 2009 (O&M) -5- *** 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 rule is divided into two parts. First part speaks for a making amendment liberally at any stage of the proceedings before the trial commenced. The object of the rule was not to dis-allow the relief to the plaintiff merely for a technical defect, error or omission made by him in his pleadings and if he had left anything in the plaint or it unnecessarily took such plea, then he could apply for adding or deleting such pleas by way of amendment. However, vide Civil Procedure Code, Amendment of 1999, with a view to avoid the delay in adjudication of the issues, the legislature thought of deleting the provision, however, on account of raising hue and cry by the legal fraternity at large, this rule with amended shape was brought on the statute book w.e.f. 1.7.2002 by the Act No.22 of 2002. This amended provision consists of two parts. The first part has been discussed above, whereas, in the second part, no absolute bar has been created by the statute regarding amendment of the pleadings yet, it envisaged that no application for amendment shall be allowed after the commencement of the trial. However, if the parties to the proceedings are able to satisfy the court that in spite of the due diligence, the party could not raise issue before the commencement of the trial and the court on having been satisfied about the explanation submitted before it, could allow the amendment even after the commencement of the trial. The law of amendment has been very liberal since the very beginning. It envisages that at the time of deciding the application for amendment, the approach of the court should be liberal to ensure that substantial justice is not denied. The procedural law is handmaid of the administration of justice, meant to advance its cause, than to frustrate the same. When the substantial justice and the procedural law come in confrontation with each other, then the former would prevail over the later. It was observed in case Jai Jai Ram Manohar Lal v. National Building Material Supply, AIR 1969 S.C. 1267 as under :- Civil Revision No. 7178 of 2009 (O&M) -6- *** “Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of the procedure. The Court always gives leave to amend the pleadings of a party, unless it is satisfied that the party applying was acting mala fide, or that by this blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and however, late the proposed amendment, the amendment may, be allowed if it can be made without injustice to the other side.” Relying on this judgment, the Apex Court in M/s Ganesh Trading Co. v. Moji Ram, AIR 1978 S.C. 484 observed as under :- “Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent deviations from the course which litigation of particular causes of action must take.” Following the dictum of Supreme Court, this Court, in case Sardar Hari Bachan Singh v. Maj. Harbhajan Singh (1975) 77 P.L.R. 21 observed as under :- “It is well settled law that, however, negligent or careless may have been the first omission and, however, late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by way of costs. A plaintiff may add as new cause of action and the defendant Civil Revision No. 7178 of 2009 (O&M) -7- *** may add a new defence. Even a new case may be allowed to be introduced. The court has to take into consideration even subsequent events. A further principle which is also usually considered is that as far as possible multiplicity of suits should be avoided. Where therefore, the plaintiff sought the permission merely to add a prayer for possession which did not alter the cause of action or change the essential nature of the suit, and the effect of the refusal of the amendment would have been to derive the plaintiff to fresh suit, the amendment should be allowed.” No doubt, with a view to curtail the flow of applications after the trial commences, the law left it to the satisfaction of the courts regarding due diligence of the parties and the law of amendment envisages that if it is established that despite due diligence, the party could not have raised that matter before commencement of the trial depending upon the circumstances, the court is free to order such application. The word “due diligence” has not been defined in the Code. According to the 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 (English 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. An ordinary man cannot be treated or equated with like a legally sound educated person or a lawyer or a person having legal knowledge. No such due diligence could be expected from an ordinary litigant to explain each and everything in minute. Civil Revision No. 7178 of 2009 (O&M) -8- *** A confusion in this case appears to have been created on account of the execution of two documents executed simultaneously on the following day. One document was executed at Jalandhar and signed by both the parties at Jalandhar and the other document was got signed from the defendant No.1 from Germany. If the signatures of the defendant No.1 are found to be forged as alleged by him, then the question if these were got typed from Germany or at New Delhi become immaterial. Thus, to streamline the facts and in order to remove the confusion ambiguities, this explanatory amendment is sought which does not prejudice the rights of the petitioner and his diligence is writ large because as soon as he came to know about the confusion, he came with the application for amendment. Now coming to the other plea raised by the defendant that no amendment could be allowed after the trial has commenced. In this case, from the facts and circumstances as referred to above, it transpires that the trial had yet commenced as after framing of the issues, the plaintiff had tendered affidavits of the witnesses and only two witnesses were cross- examined. In such circumstances, where the element of diligence was found to be in favour of the plaintiff the amendment could be allowed. The Apex Court in a case has gone to the extent that since the court should look for determining the real question into controversy and if the amendment does not cause any prejudice and the opposite party, would have the opportunity to meet such amendment while leading evidence, then such amendment should be allowed and the prejudice could only arise after the completion of the evidence. A reference if any could be made to the judgment delivered by the Apex Court in case Rajkumar Gurawara vs. M/s S.K. Sarwagi & Co. Pvt. Ltd. & Anr. 2009 (1) Civil Court Cases 001 (SC) wherein it was observed as under :- “......... To put it clear, Order VI Rule 17 CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre- trial amendments are to be Civil Revision No. 7178 of 2009 (O&M) -9- *** allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting of amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso.” The main motive to allow amendment, was with a view to impart complete justice to the parties seeking amendment which are necessary for the purpose of determining the real question in controversy. While rising above to the procedural obstacles, even delay should be sacrificed in case of material amendment if were necessary for deciding the real question into controversy. It was observed in case Rajesh Kumar Aggarwal v. K.K. Modi AIR 2006 S.C. 1647 that it was mandatory on the part of the court to allow the amendments which are necessary for the purpose of determining the real question into controversy, between the parties. It was also held that the rule of amendment is essentially a rule of justice equity and good conscience, and power of amendment should be exercised in larger interest of justice. Procedural obstacles, ought not to impede the dispensation of justice. If the basic structure of the suit is not going to be changed, instead of going in second round of litigation, the parties, should be allowed to raise all issues connected with the same dispute, even by taking cognizance of subsequent events, arising during the pendency of the litigation. The law of amendment being the procedural law could not be construed so strictly as to put the parties to such peril that a stopper may be placed over their lips not to bring out actual facts which either came to his notice late or he could not properly express in his pleadings or the some facts mentioned in the pleadings needed some further explanation with a view to impart substantial justice or to avoid that the parties may not feel handicapped in bringing true facts on the record. The word Civil Revision No. 7178 of 2009 (O&M) -10- *** “commencement” of the trial have been interpreted by the court in favour of the amendment in the judgment delivered by the Apex Court in case Baldev Singh & Ors. vs. Manohar Singh & Anr. 2006 (3) Apex Court Judgments 17 (SC) : 2006 (3) Civil Court Cases 573 (SC) : AIR 2006 SC 2832 wherein it was observed as under :- “17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has already commenced. For this reason, we have examined the records and find that in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noticed hereinafter, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of the proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court.” No doubt, the law of amendment of written statement is on different footing than the law of amendment of the plaint, yet, the liberal interpretation given to the words “commencement of the trial” equally applies to the case of the plaintiff or defendant as the case may be. In the instant case also, since the trial has just commenced and the plaintiff's evidence has just started and it could take long time for disposal of the case, then the case of the plaintiff can well be said to be covered by Baldev Singh's case (supra). Civil Revision No. 7178 of 2009 (O&M) -11- *** Actually the law of the land is in favour of the liberal principles with regard to amendment which appear to have been laid down in order to avoid multiplicity of the proceedings and to save the precious time of the courts. Some strictness has been created in allowing the applications filed by the litigants at random which may result in delay in disposal of the case. The application if superfluous, moved with an evil design to thwart the cause of justice should be discouraged. The trial court in the instant case appears to have exercised its discretion in judicious manner, as such, this court is reluctant in interfering with such exercise of discretion. The Apex Court was also not in favour of free and fluent interference of the exercise of discretion by the trial court. Similar observations were made in case Puran Ram vs. Bhaguram & Anr. 2008 (2) R.C.R. (Civil) 499 wherein it was observed as under :- “........ We are of the view that the High Court ought not to have interfered with the order of the trial court when the order of the trial court was passed on sound consideration of law and facts and when it cannot be said that the order of the trial court was either without jurisdiction or perverse or arbitrary.” The Apex Court was also of the view that the court should allow the amendment where some mistake in the description of the property or clarification is clarified or some admission has been explained by way of amendment, such amendments should be allowed. In the instant case also, the amendment sought for appears to be of explanatory and the order passed by the trial court is quite well balanced and does not suggest any such interference and sans any such illegality or perversity which may invite interference. No grounds to interfere. Dismissed. March 28, 2011 (A.N. Jindal) deepak Judge