AH? HIGH COURT OF CHHATTISGARH: BILASPUR Writ Petition (227) N0. 137 of 2009 Petitioner Praveen Katela Respondents Smt. Kamla Devi & others. Post for pronouncement of the Judgment and Order on /z/2/2009. Sd/— Satish K. Agnihotri 1 Judge HIGH COURT OF CHI-IATTISGARH AT BILASPUR Writ Petition (227) No. 137 of 2009 PETITIONER Praveen Katela aged about 37 years, S/o Shri B.L. Plamtlff Katela R/o Civil Lines , Raipur Tah. & Distt. Raipur (CG). VERSUS RESPONDENTS : 1. Smt. Kamla Devi and others aged about 58 years, W/o (WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA) (_SB: Hon'ble Mr. Satish K. Agnihotri, J.) Present : Shri V.G. Tamaskar, Advocate for the petitioner. Shri Manoj Paranjpe, Advocate for the respondents. a (Passed on this [Z day of February,2009) The petitioner, by. this petition, impugns the order dated 06.12.2008 (Annexure P/7) pas? inmCivi‘I Suit No. 133/06, pending in the Court of Civil Judge, Class-I Raipur, whereby, the application of the petitioner, filed under Order VI Rule 17 of the Code of Civil Procedure, 1908’ (for short 'CPC'), for amendment of the plaint, was rej ected. 2. The facts, in nutshell, are that the petitioner filed a suit for declaration and permanent injunction on 23.10.1992 (Annexure P/l). Written statement was filed by the respondents/defendants on 23.03.1993. The Civil Suit was \\\’\ initially registered as C.S. 246 A/1992, thereafter, it was renumbered as Defendants late Parasmal Jain Shankar Nagar Near Water Tank Tah. & Distt. Raipur (CG). 2. Smt. Neeta DeviBhansali aged about 44 years, W/o Shri Rajkumar Bhansali R/o Malviya Road, Baijnathpara, Raipur (CG) Tah. & Distt. Raipur (CG). 3. Smt. Mamta Devi Bhansali aged about 40 years, W/o Shri Mukesh Chandra Bhansali R/o Malviya Road, Baijnathpara, Raipur (CG) Tah. & Distt. Raipur (CG). C.S. 133A/2006. The respondents/defendants thereafter made an application under Order VI Rule 17 of CPC after about 16 years on 10.09.2008 (Annexure P/3), seeking amendment in the written statement. Despite objection of the petitioner, the application was allowed by order dated 17.1 l .2008 (Annexure P/4). Thereafter, the petitioner also filed an application under Order VI Rule 17 of CPC for consequential amendment in the plaint on 03.12.2008 (Annexure P/S). The said amendment was rej ected by the learned Judge 0n 06.12.2008. Thus, this petition. 4. Shri V.G. Tamaskar, learned counsel appearing for the petitioner submits that the petitioner is entitled to consequential amendment in the plaint. Thus, learned Judge ought to have granted permission to amend the plaint. 5. Per contra, Shri Manoj Paranjpe, learned counsel appearing for the respondents supports the order passed by the Civil Judge, Class- I, whereby, the application of the petitioner was rejected. 6. I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. On perusal of the docwnents appended to the pleadings,it appears that learned Judge has not considered the facts as to whether proposed amendment changes the nature of the plaint or it facilitates adjudication of the original case. Learned Judge has rejected the application on simple ground that consequential amendment is not permitted pursuant to amendment in the written statement. It is ‘well settled principle of law that amendment may be permitted at any stage that court may allow amendment, if it is satisfied that in spite of due diligence, the party could not haye raised the matter before the commencement of trial and the proposed amendment does not change the nature of the suit. All amendments of the pleadings should be allowed which are necessary for determination of the real controversy in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. The basic requirement is that amendment is permissible if it is necessary for the purpose of determining the real question in controversy between the parties. The concept of amendment of pleadings under Order VI Rule 17 of CPC have been vividly discussed by the Hon'ble Supreme Court in a catena of decisions. 10. In the matter of B.K. Narayana Pillaz‘ Vs. Parameswaran Pillai and Another] while dealing with the scope of Order VI Rule 17 of CPC observed as under : "inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates (sic results) in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not‘fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement." 11. Further, in the matter/6f Salem Advocate Bar Association, T.N. v. Union of India2, the above ratio was reiterated as under: "26. 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 ofvdue 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 ‘2000 (1) scc 712 2 (2005) 6 scc 344 application is flled after commencement of trial, it has to be shown that inspite of due diligence, such 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. " 12. Further, in the matter of Raj Kumar v. Deependra Kaur Sethz'3, the Hon‘ble Supreme Court, relying upon the principle as laid down in Pirgonda Hangonda Patil v. Kalgonda Shidgonda Patil (AIR 1957 SC 363), in para 8 observed as under: ”Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim." 13 The Hon’ble Supreme Court, in the matter of State ofA.P. and others v. Pioneer Builders, A.P.4 has settled the principles governing amendment of the pleading which reads as under: “21 .......Nevertheless, one distinct cause of action cannot be substituted for another nor the subject-matter of the suit can be changed by means of an amendment. The following passage from the decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung succinctly summarieses the principle which may be kept in mind while dealing with the gayer’foratnendment of the pleadings: “All rules of court are nothing but provisions ~ intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that filll powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct,cause of action to be substituted for another, nor to change, by means of amendment, the subj ect-matter of thesuit ......." 3 (2005) 9 scc 304 4 (7am ‘2 scc 119 7&009 (1) s . a. 14. In the matter of Bollepanda P. Poonacha & Anr. v. KMMadapa5, the Hon’ble Supreme Court, while considering the application flled by the defendants for amendment of the written statement, observed as under: “13’ The Court in such matters has a wide discretion. It must, however, subserve the ultimate cause of justice. It may be true that further litigation should be endeavored to be avoided. It may also be true that joinder of several causes of action in a suit is permissible. The Court, must, however, exercise the discretionary jurisdiction in a judicious manner. While considering the subservance ofjustice is the ultimate goal, the statutory limitation shall not be overstepped. Grant of relief will depend upon the factual background involved in each case. The Court, while undoubtedly would take into consideration the questions of serious injustice or . irreparable loss, but nevertheless should bear in mind that a provision for amendment of pleadings are not available as a matter of right under all circumstances. One cause of action, cannot be allowed to be substituted by another. Ordinarily, effect of an admission made in earlier pleadings shall not be permitted to be taken away.” 15. Further, in Vidyabai & Others v. Padmalatha & another6, the Hon’ble Supreme Court observed as under: “14. 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 VI 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 casevof this nature is limited. Thus, unless the jurisdi bnaL fact, as envisaged therein, is found to be existing, t e court will have no jurisdiction at all to allow the amendment of the plaint.” x \ l6. In so far as amendment of pleadings as enshrined under Order VI Rule 17 of CPC the words "Due Diligence" has been consistently in use but the same needs to be clarified and interpreted in a manner to uphold the cause r ofjustice. 5 2008 AIR scw 2895 \X wiji2909 (1) supreme 238 , , 17. The Supreme Court in the matter of Chander Kanta Bansal v. Rajinder Singh Anand7 has defined the word "due diligence” in following terms z “16. The words "due diligence" have not been defined in the Code. According to Oxford Dictionary (Edn. 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 (18th Edn.), "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 t obligation. According to words and phrases by Drain- y Dyspnea (Permanent Edn. l3-A) "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.” This Court, in the matter of Smt. Asharani Gupta & Others v. Siddharth Shukla, in W.P. (C) No. 7071/2006 and Smt. Rajkumari Gupta and Others Vs. Bheemsen Gupta and Others (W.P. (C) No. 5210/07) dealing with provisions of Order VI Rule 17 of CPC and relying upon the above ratio as laid down by the Supreme Court observed that amendment is permissible for the purpose of determining the real question in controversy between the parties. 19. Applying the above well settled principles of law as laid down by the Supreme Court in/paseqpf amendment of pleadings, the real issue asto whether the proposed amendment substitute the cause of action or changes the nature of the suit or inspite of due diligence such amendment could not have been sought earlier or the plaintiff seeks to amend by setting up a fresh case in respect of a cause of action on which since the institution of the suit had become barred by limitation, has not been considered by the court below. The application of the petitioner/plaintiff for consequential ‘ . r / ‘Ewigzoos ) 5 scc 117 , ,