CR No.4931 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CR No.4931 of 2009 Date of Decision: 17.11.2009 Ramanand .....Petitioner Vs. Sedhu and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. S.S. Khurana, Advocate for the petitioner. Mr. S.N. Yadav, Advocate for the respondents no.1 to 3.. .... RAJIVE BHALLA, J (Oral) The petitioner challenges an order dated 4.6.2009 whereby the Civil Judge (Junior Division), Rewari, has dismissed his application for amendment of the plaint. The plaintiff/petitioner filed a suit for permanent injunction to restrain the respondents from interfering in his possession over the suit land by alleging that part of the suit land was sold to him by Mahadev vide sale deed dated 22.6.1979 and for the remaining half share, owned by the vendor's brother Mukanda, the vendor received money after promising the petitioner that this half share would be transferred to his name by the vendor's brother. During the pendency of the suit, but before evidence could CR No.4931 of 2009 2 commence, the petitioner filed an application for amendment of the plaint praying that he should be allowed to incorporate a plea that after the demise of Mukanda, his legal heirs executed an agreement to sell dated 13.6.1981 and delivered possession of their half share to the petitioner. It was pleaded that these facts were brought to the notice of his counsel, but were not pleaded on account of a bonafide error. The contesting respondents no.1 to 3 opposed the prayer for amendment by pleading that as the trial has commenced, the prayer for amendment cannot be accepted. It was further pleaded that as the heirs of Mukanda have sold their half share to respondents no.1 to 3, by way of a registered sale deed 21.8.1980 even if the amendment is allowed the subsequent agreement in favour of the petitioner, would be irrelevant. The trial court dismissed the application by holding that the petitioner has failed to prove the exercise of “due diligence” for not incorporating this plea in the original plaint. Counsel for the petitioner submits that the amendment of the plaint is necessary, as both parties claim possession of the suit land, the petitioner on the basis of an agreement and respondents no.1 to 3 on the basis of a sale deed. The proviso to Order 6 Rule 17 of the Code cannot be read as an absolute bar to the power of a court to allow amendment of pleadings. It is argued that as the petitioner provided all necessary documents to his counsel, disclosed all relevant facts, the error by his counsel in not incorporating this plea should have been accepted as a bonafide error committed despite the exercise of “due diligence”. Counsel for respondents no.1 to 3, on the other hand, submits that the petitioner has failed to make out a case, whether of due diligence CR No.4931 of 2009 3 or that the amendment is necessary to determine the real question in controversy. The heirs of Mukanda executed a prior sale deed in favour of respondents no.1 to 3. The alleged agreement in favour of the petitioner is, therefore, null and void. It is prayed that as the discretion exercised by the trial court in declining the prayer for amendment is neither arbitrary nor perverse, the revision petition should be dismissed. I have heard learned counsel for the parties, perused the impugned judgement and considered the provisions of Order 6 Rule 17 of the Code, which read as follows :- “Order 6- Rule 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.” Order 6 Rule 17 commences with the words “the court may at any stage of the proceedings” and thereafter, goes on to confer a power to allow either party to alter or amend his pleadings, where it appears to the court that the amendment is necessary for the purpose of determining the CR No.4931 of 2009 4 real questions in controversy. The proviso, by use of the expression “Provided that no application for amendment shall be allowed after the trial has commenced” appears to place an embargo on the power of a court to allow amendment of pleadings after the trial has commenced. If the proviso were to end with this expression, it could justifiably be argued that pleadings cannot be amended after the commencement of a trial. The proviso, however, qualifies the prohibitory expression by the use of the words “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” thereby clarifying that the embargo is not absolute and the court, may if circumstances so permit, allow an amendment after the commencement of the trial. While considering the true import of Order 6 Rule 17 of the Code, the Hon'ble Supreme Court held in Ajendraprasadji N. Pande & another Vs Swami Keshavprakeshdasji N. & others, 2007(1) RCR (Civil) 481, as follows :- “32. By Act 46 of 1999, there was a sweeping amendment by which Rules 17 and 18 were wholly omitted so that an amendment itself was not permissible, although sometimes effort was made to rely on Section 148 for extension of time for any purpose. 33. Ultimately to strike a balance the Legislature applied its mind and re-introduced Rule 17 by Act 22 of 2002 w.e.f. 1.7.2002. It had a provision permitting amendment in the first part which said that the Court may at any stage permit amendment as described therein. But CR No.4931 of 2009 5 it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the Court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is this proviso which falls for consideration. 34. Reliance was placed on the judgement of this Court in Salem Bar Association case (supra). In this case, this Court dealt with Order 6 Rule 17 at para 26. Chief Justice Y.K. Sabharwal speaking for the Bench observed as under :- “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 inspite 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 CR No.4931 of 2009 6 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.” 39. It is to be noted that the provisions of Order VI Rule 17 CPC have been substantially amended by the CPC (Amendment) Act, 2002. 40. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless inspite of due diligence,the matter could not be raised before the commencement of trial. It is submitted,that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order VI Rule 17 was due to the recommendation of the Law Commission since Order 17 as it existed prior to the amendment was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the Amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of Courts and, therefore, by Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recognizing the power of the Court to grant amendment, however, with certain limitation which is contained in the new proviso added to the Rule. The CR No.4931 of 2009 7 details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their Court case and manifests the absence of due diligence on the part of the appellants disentitling them to relief.” A prayer for amendment of pleadings made after the commencement of a trial, shall ordinarily be declined. Where, however, the applicant establishes that despite the exercise of due diligence, he could not raise the pleadings sought to be pleaded by way of amendment, before the commencement of a trial, a court would be justified in allowing such an amendment. The power, therefore, to allow amendment of pleadings, even after the commencement of the trial, subsists, but with a caveat that the party praying for amendment must establish that despite the exercise of due diligence, the pleadings sought to be pleaded by way of an amendment could not be raised before the trial commenced. A court, therefore, may where it is of the opinion that the amendment is necessary for the purpose of determining the real controversy and if the applicant satisfies the court that despite the exercise of due diligence, he could not raise the pleadings before the trial commenced, allow such a prayer, even after the commencement of the trial. The trial court rejected the prayer for amendment by holding that as issues have been framed and the petitioner has failed to establish the exercise of “due diligence”, his prayer for amendment cannot be accepted. CR No.4931 of 2009 8 Apart from the fact that the trial court misread the import of Order 6 Rule 17 of the Code, as explained herein above, it also failed to comprehend the petitioner's plea that he had entrusted all relevant documents and disclosed all relevant facts to his counsel. The error in raising the pleadings, as instructed, was on the part of the counsel, who failed to incorporate pleadings with respect to the agreement to sell dated 13.6.1981. A party, reposes implicit faith in his counsel and if a counsel commits a bonafide error, despite having received all relevant documents and instructions from a party, a litigant cannot be punished for the error of his counsel. In such a situation, a party would be entitled to urge that the error committed by his counsel falls within the meaning of expression “due diligence”. The argument that the agreement to sell dated 13.6.1981 is null and void, as the property had already been sold to respondents no.1 to 3, would be considered during the final adjudication of the suit and cannot by itself be a ground to decline the prayer for amendment. As the amendment prayed for is necessary for the purpose of determining the real questions in controversy, the trial court should have allowed the prayer for amendment. In view of what has been stated herein above, the revision petition is allowed. The order dated 4.6.2009, passed by Civil Judge (Junior Division), Rewari, is set aside and the amended plaint is taken on record, subject however to payment of Rs.5,000/- as costs. Parties are directed to appear before the trial court on 9.12.2009 for further proceedings. 17.11.2009 ( RAJIVE BHALLA ) GS JUDGE CR No.4931 of 2009 9