HEGH COURT OF CHHATTISGH AT BILASPUR (Hon. Mr. Justice Priténker Diwaker) WRST PETITION (227} No. 3957 of 2008 Shrt Mano} Paranj’pe, counset for the petitioner. S‘nri Ks‘nitiz Sharma, counsei for respondents No. 2 & 3. None for respondents No. 1 and 4 though served. WRET PETiTtON UNDER ARTIBLE 227 OF THE CONSTITUTIQN J"; . OF INDIA W O R § E R (0&04290g) The chaiienge in this writ petition is to the order dated 07.04.2008 and 26.06.2908 passed by Civii Judge, Class it Raipur in Civii Suit No.57- NZOOG pending before it. Vide order dated 07.04.2008 the court beiow directed the piaintiffs to make suitable application for amendment. The court below has also suggested the plaintiffs regarding the natare of amendment to be carried out. Vide order dated 25.06.2903 the ooort i PETWIONER Deenanath Sharma @ Deenu Sharma, Sic. DEFENDANT Munshi Ram Sharma, Aged about 65 years, Rio. House No.16, State Bank Colony, Sundar Nagar, Raipur (C.G.) At present Rlo. N8 Deepak Apartment, Kankali Para, Raipur, District Raipur (0.6.) VERSUS RESPCNDENTS 1. Smt. Asha Pandey, W10. Late P.S. Pandey, PLAINTWFS Aged about 43 years, 2, Sandeep Pandey, S/o. Late RS. Pandey, Aged about 23 years, 3. Ku. Swati Pandey, Dlo. Late P.S. Pandey, Aged about 19 years, * 4. Ku. Nidhi Paadey, D/o. Late P.S. Pandey, Aged near abcut 13 years, thmugh : her natural guardianimother Smt. Asha Pandey, W/o, Late P.S. Pandey, Aged about 23 yeare, All above resident 9f House No.17, State Bank Cotony, Sunder Nagar, Raipur, District Raipur (C.G.) -1, b$§ow aHaweci the apmication med by the plaintiffs under Oréer 6 Rwe 1? read with Section 151 of fhe Ccde of Civil Prccedure. 2,) Certain facts which are reievant for disposal of the present petiiion are ihat me piaintiffs filed a suit on 11.06.1997 for declaration and permanerrt injunction On 19.03.2008 the evidence of both the parties was ciosed and the next date was given as 31.03.2008 for finai argument. On 31.03.2008 the final arguments of the parties were aiso heard and the case was directed to be pasted on 07.04.2008 for pronouncement of the judgment. On 07.04.2008 instead of pronouncing the judgment iearned court beiow observed as under» “fairinga‘emwgawsmaiwihrmwimwwestm €%Wnaemmm$weanwa$eeaiwna weeaeregmeeeermeanaeeeaee memeuwmmmeiita‘efregatwwe reimzxsoawfuhzewn‘eréawviinfhawe’imaetate megntan—q‘erwmméi wresrhree‘teia‘mamahne‘é‘iéehmn‘mfem i‘karm‘cne‘ieam‘hmmzxgo W: wnoqajfth‘ieq‘ wwrme‘tamatmmmmégmtegaiwwa’, enee‘ertiefeeaw‘awrmarta‘mee'xewegmw #nmwmetnaewminwwmée‘mwewwr Va .5 ix \ . 1, ammmmmmma‘gwm €21 11/a4/2sosi 3) $ubsequem‘fy, on 114.2008 an appiicatien was med by the p1aintiff3 under Section 151 of the Code of Civii Procedure for payment af deffcit court fee. The said application was aitowed en the same day and the case was directed to be iisted on 1?.42308. On 114.2068 the. plaintiffs med an application under Order 6 Rwe 17 of the Cede 0f CévH Procedure (Annexure P-3) 3eeking :he foiiowing amendments:- (al) 1E; 1% an: W I? am aw? e am Wemwwwemwmmaommemm Fm eg W W 3200 W 3260:200 mm mix" (a) eemwemsemamee mewar‘emwe‘? WWW: (w) w%mw$m1a$mw\‘m~ "(11) ae%w$a%avaeahwumem femwaméedeadw§WW$amiéa W$q§em1i$mmwm2xm= iaow‘imezifewardawmgqm$%ww WWWWW$1§ewWmW §zwmmmmmwmméi (3') aef$muaa§i1gnew$5dm14$ Wm§e€W$m$éWa§mmm— “mememxwewmnemw WW$€HW®WW’ ($7 %%mw$m1s$mmd Wmwemmmwwmm— Vk, \f) “amiErartmwav‘1MmmmmmiW mmfémmwm$mf§aff§am$2o {ifH 3209.03 KWWT 13R 384.00 WEI W aim W 43W m W 444.09 arm” (§) a€%mw$‘rw§mma&@$m Wmamm“awma?rum%amw@ afWWI§Gmamm§mmzxm :1som@mmmmm¥€%w mmwimwmmm,gm$m Gm” 4) Thé aforesaid application THed by the piaintiffs was duky replied i0 by the petitionen’defendant opposing the amendment sought for by the plaintiffs. in the reply it was stated by the petitioner/defendant that firstiy on merit the, amendment sought for cannot be aliowed and secondly the same is impermissible in View of the provisions of law. It is also stated in the written statement that if the application for amendment is allowed, the matter would be re-opened and the evidence of the parties would be required to be led afresh and because of that, nature of the suit would change. 5) Contention of Shri Paranajape appearing for the petitioners is that firstly the order dated 7.4.2008 is bad in the eye of law because the court below ought to have pronounced the judgment on the said date on the basis of the pleadings and arguments advanced by the parties on the last 4 date of hearing i.e. 31.3.2008. His further contention is that the Court below should not have acted as an advisor and it was required to confine itself to the pleadings of the parties and the material already available on record. According to the counsel for the petitioners, the direction suggestiitfg the necessary amendment cannot be made and that for ’n' #Er payment of deficit court fee could not have been ordered because the direction regarding payment of deficit court fee if at aii neceesary, couid have been made even, after pronouncement of the judgment itself. According to him there was no occasion for the Court to issue such a direction in favour of the piaintiffs as it is contrary to law. 8) Assaiiing the order dated 26.6.2008 it has been put-forth by Mr. Paranjape, that amendment sought for by the plainttffs woutd entirely change the nature of the case and would go contrary to original pleadings in the plaint. Counset for the petitioner/defendant further submits that if the amendment sought for is allowed, it will amount to re-opening of the case and the parties would be required to lead their evidence afresh. Further contention of the counsel for the petitioneridefendant is that amendment sought for is conttary to the provisions of Order 6 Rule 17 of the Code of Civtt Procedure. 7) On the other hand, supporting the order of the Court below counsel for the tespondents/ptaintiffs submits that the order impugned is strictly in accordance with law and there is no infirmity in the same warranting interfetence by this Court. He further submits that the Court beiow was absoluteiy justified in passing the order dated 7.4.2008 and suggesting to the respondents/plaintiffs regarding amendment in the 'plaint. He submits that the order dated 26.6.2008 is strictly within the parameters of the iaw governing the amendment as defined under Order 6 Rule t7 of the Code . of Civii Procedure. According to him amendment can be allowed at any stage that too when the case is fixed for pronouncement of the judgment. 8) Heard counsel for the parties at length and perused the materiai available on record. 9) Admittedly, on 31.3.2008 after closing the evidence. with the ' consent of the parties arguments were nnaily heard by the court below. Thereafter, the case was listed on 07.04.2008 for pronouncement of the k.) x \ n a. r g6~ ima’gment. i am surprised as to what was the occa$ian for the com to pass €he Carder dated 07.94.2008 suggesting the amendment to ihe pfaintiffa Aféer hearing the arguments of the respective parties at length, it was imumbent on me part of the court to pronaunee the judgment. Even regarding payment of éefEcit court fee} if the said relief is ciaimed by the parties and the ecurt fee hag not been paid properiy, :he caurt is empowered to direct :he concerned party for paymen’c of deficit court fee at the time of i’inai judgment itseif. However, before pronouncing the iudgmenr the act of the court beiow suggesting to the party regarding amendment and issuing certain direction regarding payment of deficit court fee is uncaiied for. it ie oniy after the order of the court dated 07.94.2008 nrstiy the piaintitfs moved an eppiication under Section 151 for eayment at deficit court fee and then again making an appiioation under Grater 5 Ruie 17 seeking various amendments in the piaint. After amenciment in the Code oi Civii Procedure the Order 6 Rule 17 read as under:- ‘i‘tmendment of pieadings — The Court may at any Stage of the proceedings aifow either party to eiter or ‘ amend his p/eadings in each manner and on such terms as may bejust, and at! such amendments shaii be made as may ire necessary for the purpose of determining fie reef questions in controversy between he parties: Provided that no appiicetion for amendment shall be eilowed after the triai nee commenced, unless the Court comes to the conclusion that in spite of due diiigence, the party cowd not have raised the matter before the commencement of triai. ” 10) Once the case was ciosed for pronouncement of the judgment, in the pecuiiar facts and circumstanoes of the case, there was no occasion for the Gourt to pass the order dated 7.4.2008 suggesting to the piaintiffs about the amendment. Furthermore, even on facts the Court was wrong in passing the order dated 7.4.2008 because certain incorrect facts have ‘oeenr mentioned by the Court contrary to the pieadings of the parties in the _"‘ _.7,,. pias‘nt med by the Mamtiffs. m the piainz‘ the foiiowing reh’ef has been sought: (a) W$w=§aanqM$ma§a§Wm Wait Wwi w(wa€)”vm:r$m‘$~17 (wag)w iwwi@ 4000 (aw m) m3 m soxan (m XW } $ wWmW?! I (a) W$w§wm$mw ‘MWH@$WEW$W$W@W‘ @Egm1sn(w¥§m) wqgz§gwawéawwvft mw%wmm§awwg§?iwmms&a W§Warwmar}a%mé§g$mww W! (a) mwmww#m%wfaqmwm mwmmfEWWwwmi (a) mmwmma‘mw: (§) mwmWWW$f§a #WWWrWI 1‘5) m tha amendment apphcatxon also there Is no mention by the piamnffs as to when the amendment as Sought for became necessary for them and triereby prowso to Rule 17 of Order 6 has been compietefy Ignoree by the p amtiffs as we}: as by the court betow Prowso to Rule 17 er Order 6 ctearfy says that rt rs the duty of the parties seeking amendment to satisfy the Court that m sprte of due diligence the parties could net have raised the matter before commencement of the trial In the applrcatlon seekmg amendment (Annexure P—3) there rs no mention of any such fact ‘ and the amendment ts bemg sought In a very casual manner snnp y based 3 on directron gn'en by the Court on 742008 Word due diligence has been elaborately arscussed by the Hon ble Apex Court m the matter of -5( 1 which read as Chander Kama Bansai v. Rajinder Sinqh Anand s undet “However, if it is established that in spite of “due diligence" the party could not have raised the matter before the commencement of tria! depending on the circumstances, the Court is freer to order such application. The words "due diiigence” has not been defined the Code. According to Oxford dictiony (Edition 20), the word “diiigence” means carefui and persistent appiication or effort. “Diligent" means careful and steady in application tc one's work an duties, showin care and ffort. As per Black’s Law Dictionary (Eight edition), “diligence” means a ntinual 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 ordinariiy emphasized by, a person who seeks to satisfy a iegai requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13-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. lt is clear that unless the party takes prompt steps, mere action cannot be accepted and me a petition after the commandment of trial.“ ln the matter of Raikumar Gurawara iDeacl; Thr. LRs v. Mfs SK. Sarwaqi 8. Co. Pvt. Ltd. 8. Annz it has been held by the Apex Court as under: “Admittedly, the plaintiff failed to adhere to the said is recourse at the appropriate time. Further it is relevant to point out hat in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit scheduled l property and in the'petition fiied during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. it is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The piaintiff not only failed to satisfy the conditions prescribed in proviso to " 2008 AIR SCW 3225 2 200%AIR SCVJ 4007 i} aw x. in ar 06 d g e co m ' @1 ..j~ Order Vf Ruie 17 but even on merits his ciaim is iiable to be reiected." 12. As mentioned earlier in the case in hand, the piaintiffs filed an appiication for amendment after 11 years and that too after the uncalled for directions were issued by the court on 7.4.2008. Such amendment cannot be allowed and accordingly the orders dated 7.4.2008 and 26.6.2008 passed by the Court below are liable to be set aside and they are thus set aside. Trial Court is directed to proceed further by hearing the parties again nnally and shall pronounce the judgment in accordance with raw. f Sd/- 7 " Pritinker Diwaker Judge " ’ " 11° '