1 wp3491.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3491 OF 2011 1. Kishor Raghunath Pande, Age: 51 years, Occ: Business, 2. Vijaya Raghunath Pande, Age: 42 years, Occ: Business, Both R/o. Plot No.46, Ganeshwadi, Near Ramdeo Baba Mandir, Taluka & Dist. Jalgaon. ...PETITIONERS VERSUS Narendra Durlabhji Shah, Age: 58 years, Occ: Business, Partner of Mahendra Trading Corporation, R/o. 54, Bhawani Peth, Jalgaon-425 001 Tal.& District - Jalgaon. ...RESPONDENT ... Mr. Amol K. Gawali, Advocate for petitioners. Mr. A.M. Gholap, Advocate for respondent sole. ... CORAM: S.S. SHINDE, J. DATE : 12TH DECEMBER, 2011 ORAL JUDGMENT : . Rule. Rule made returnable forthwith. With the consent of learned Counsel appearing for the parties, this petition is taken up for final 2 wp3491.11 disposal. 2. Heard learned Counsel appearing for the petitioners and learned Counsel appearing for the respondent sole. 3. This writ petition takes exception to the order dated 15-02-2011 passed by the 2nd Joint Civil Judge, Senior Division, Jalgaon thereby rejecting the application below Exhibit-45 in Special Civil Suit No. 209 of 2008. 4. Learned Counsel for the petitioners invited my attention to the grounds taken in the writ petition which reads thus : (I) The learned Lower Court erred in rejecting the application below Exh. 45, without appreciating the reasons assigned by the petitioners for the delay caused in filing the application seeking amendment of written 3 wp3491.11 statement. (II) The learned Lower Court ought to have appreciated that the Advocate on record was duty bound to properly plead the case of the present petitioners by stating necessary facts in the written statement. Since the Advocate was suffering from ill health, the advocate had not properly represented the case of the present petitioners. (III) The learned Lower Court ought to have appreciated that though the petitioners were aware about all the facts, which are sought to be incorporated by the proposed amendment, by reasons of the casual approach of the earlier advocate of the present petitioners, the same could not be placed on record on the form of Written Statement, for which the petitioners cannot be punished. (IV) The sequence of events, right from the date of engaging 4 wp3491.11 the advocate would reflect that by reasons of his ill health, he could not properly represent the case of the present petitioners for which the petitioners cannot be made to suffer. (V) The learned Lower Court ought to have appreciated that there is no blanket prohibition for entertaining an application for amendment after the start of evidence. The provisions of Order VI Rule 17, give discretion to the Courts to allow entertainment of application in appropriate cases after considering the reasons allotted for the delay caused in filing application. (VI) The approach of the learned Lower Court in out rightly rejecting the application of the present petitioners below Exh. 45 without application of mind, to the reasons assigned by the petitioners for the delay caused 5 wp3491.11 in filing the application, can be termed as perverse. (VII) The refusal of exercising the discretion by the lower Court, without applying its mind to the reasons assigned in the application below Exh. 45 can be termed as a jurisdictional error and deserves to be corrected. 5. Learned Counsel for the petitioners would submit that, the application below Exhibit-45 was filed for the amendment of the Written Statement. In para-3 and 4 of the said application, it was specifically stated that, the applicants i.e. petitioners herein are not aware about law provisions. All the relevant facts/material on which the applicants wish to rely were not included/incorporated in the written statement filed by the Advocate who was engaged by them. Learned Counsel further invited my attention to para-4 of the said application and submitted that, the Advocate who appeared on behalf of the 6 wp3491.11 applicants/petitioners did not put forth the case of the applicants properly. The written statement which was filed by the Advocate who appeared initially was containing only 10 to 12 sentences. The entire material, on which the applicants/petitioners wanted to place on record through the written statement in support of their case, was not incorporated in the written statement. The Advocate who was engaged, was suffering from serious ailment and therefore, another Advocate was engaged by the petitioners before the trial Court. . The sum and substance of the argument of the Counsel appearing for the petitioners is that, because of the mistake of the Advocate for not incorporating all the averments/material on which the petitioners wish to rely in support of their case in the written statement, the petitioners should not suffer. The petitioners should get full opportunity to represent their case by way of allowing the application for amendment of the 7 wp3491.11 written statement. Learned Counsel further submits that, since the parties are yet to lead evidence and only affidavit in lieu of examination in chief is filed by the plaintiff, no prejudice will be caused to the plaintiff if such application for amendment of the written statement is allowed by this Court. Learned Counsel at the cost of repetition would submit that, because of the mistake of the Advocate who did not file detail written statement, the petitioners should not suffer. 6. Learned Counsel for the petitioners invited my attention to the reported judgment of this Court in the case of Twist Spin Industries vs. KMH Enterprises reported in 2009(4) ALL MR 763 and submitted that, this Court in para-7 of the said judgment observed that, provisions of Order 6 Rule 17 of the Code of Civil Procedure are not mandatory but it is discretionary. Learned Counsel also invited my attention to the reported judgment of the Hon'ble Supreme Court in the case of 8 wp3491.11 Rajkumar Gurawara (Dead) Through L.Rs. vs. M/s. S.K. Sarwagi and Co. Pvt. Ltd. and another reported in A.I.R. 2008 S.C. 2303 and in particular para-5 of the said judgment. According to learned Counsel for the petitioners, only after completion of 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 provisions of Order 6 Rule 17 of the Code of Civil Procedure. Learned Counsel also placed reliance upon the reported judgment of the Hon'ble Supreme Court in the case of Chander Kanta Bansal vs. Rajinder Singh Anand reported in (2008) S.C.C. 117 and in particular para-16 of the said judgment. In para-16 of the said judgment, the dictionary meaning of "due diligence" is discussed. Relying upon the said paragraph, learned Counsel for the petitioners would submit that, "due diligence", in law, means doing everything reasonable, not everything possible. 9 wp3491.11 Learned Counsel also relied upon another reported judgment of the Hon'ble Supreme Court in the case of Sushil Kumar Jain vs. Manoj Kumar and another reported in 2010(4) Bom.C.R. 437 and submitted that, provisions of Order 6 Rule 17 of the Code of Civil Procedure gives discretion to the Court that at any stage of the proceedings, amendment to the written statement can be allowed. Learned Counsel in particular placed reliance on para-8,9 and 10 of the said judgment. . Relying upon the above mentioned reported judgments of this Court and the Supreme Court, the Counsel for the petitioners submits that, this petition may be allowed. 7. On the other hand, learned Counsel for the respondent invited my attention to the Roznama which is placed on record from pages 16 to 31 of the compilation of the writ petition at Exhibit-B. Learned Counsel submits that, at least on two occasions, adjournment was sought by the original 10 wp3491.11 defendants i.e. petitioners for filing the written statement. On 14-11-2008 the application for adjournment for granting time to file W.S. was rejected. 'No W.S. Order' was passed by the trial Court and thereafter, the application was filed by the original defendants for setting aside 'No W.S. Order'. Said application was allowed on 02-07-2009. Thereafter, Written Statement was filed. Issues were framed on 28-10-2009. Affidavit in lieu of examination in chief was filed by the plaintiff on 26-02-2010. The petitioners herein - original defendants have filed application for amendment of the written statement on 13-07-2010. Said application was opposed by the plaintiff, however, on 31-07-2010 said application for amendment was allowed. Thereafter, the matter was adjourned time to time and on couple of occasions to enable the petitioners i.e. defendants to file amended copy of the written statement on record. It is further submitted that, from the date of which amended copy of the written statement was filed on record, 11 wp3491.11 on the said date another application was filed for further amendment of the written statement. . The Counsel for the respondent would submit that, there was deliberate attempt on the part of the petitioners herein to adjourn the matter for one or other reason though their application at Exhibit-37 for amendment of the written statement was allowed, he did not incorporate all material/facts which they wanted to incorporate in the written statement. According to the Counsel for the respondent, not only that the mandate of provisions of Order 6 Rule 17 of the Code of Civil Procedure is not fulfilled in this case, but attempt was being made by the petitioners i.e. defendants to seek adjournments in the matter so as to prolong the hearing of the suit. Learned Counsel further submitted that, none of the judgment cited by the Counsel for the petitioners takes a view that the second application for amendment of the Written Statement is also required to be considered and 12 wp3491.11 allowed liberally. Therefore, none of the judgments cited by the Counsel for the petitioners is applicable in the facts of this case. It is further argued that, it is not the case of the petitioners that, the petitioners instructed the Advocate to incorporate material/information given by them and the Advocate, in turn, has not incorporated the same in the written statement. Written Statement was duly verified by the petitioners. Therefore, according to the Counsel for the respondent, writ petition is devoid of any merits and same deserves to be dismissed. 8. Upon hearing the Counsel for the parties and in the facts and circumstances of this case, it would be relevant to state that, the main ground which is taken by the petitioners in their application at Exhibit-45 for amendment of the written statement appears to be that the Advocate who was engaged by them did not take due care in filing proper written statement. Further contention of the petitioners appears to be that, 13 wp3491.11 even in the application which was filed for amendment of the written statement at Exhibit-37, the earlier Advocate did not care to incorporate all the material/facts/points which the petitioners wanted to incorporate in the written statement. From careful perusal of the application at Exhibit-45 nowhere statement is made by the petitioners-applicants that particular instructions/matter was given to the Advocate who was engaged by them to incorporate said instructions/matter which now they wish to bring on record by way of amendment. I find considerable substance in the argument advanced by the Counsel for the respondent that, it is not the case of the applicants/petitioners that full facts/material was handed over to the Advocate to incorporate the same in the written statement and the Advocate failed in his duties to file proper and detailed written statement. . On the contrary, from perusal of the affidavit in support of the written statement, it 14 wp3491.11 is abundantly clear that, the petitioners have verified the said written statement. On query to the Counsel appearing for the petitioners that whether the petitioners are educated, the Counsel clearly concedes that the applicants are educated, they have passed 12th standard. Therefore, by any stretch of imagination, it cannot be said that the applicants/petitioners were not aware about what is stated in the first written statement. 9. That apart, the application which was filed at Exhibit-37 for amendment of the written statement came to be allowed. Said application was entertained at the stage when the plaintiff did file affidavit in lieu of examination in chief, it was possible for the petitioners to incorporate all the relevant material/facts/points on which they wanted to rely in the case. However, it appears that no due diligence was shown by the applicants. From perusal of the judgments of the Hon'ble Supreme Court and in particular para-16 of the judgment in the case of Chander Kanta Bansal 15 wp3491.11 (supra), one of the meaning of 'due diligence' means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs. 10. Therefore, in the facts of this case, it was for the applicants-petitioners to bring to the notice of the Advocate the material/matter which now they wish to bring in the written statement by way of amendment at the time of filing of the main written statement or at the time of first amendment in the written statement. It is not the case of the applicants-petitioners that the matter now which they want to incorporate by way of amendment in the written statement, was not within the knowledge of the applicants- petitioners. It is the contention of the petitioners-applicants that, Advocate who was appearing for them earlier did not incorporate that entire material in the main written statement and also by way of amendment. In my considered opinion, the attempt of the applicants-petitioners 16 wp3491.11 appears to be to prolong the trial. By any stretch of imagination, it cannot be said that, the applicants-petitioners who can read and write, have no idea of incorporating all the necessary averments/material in the main written statement and amended written statement after their application at Exhibit-37 for amendment of written statement was allowed. 11. Even if the contention of the petitioners is accepted that the provisions of Order 6 Rule 17 of the Code of Civil Procedure are required to be interpreted liberally. However, in the facts of the present case, when one opportunity was given to the petitioners-applicants for amending the written statement by allowing application at Exhibit-37, the petitioners did not avail the said opportunity. Present case stands on different footing on facts than the cases cited by the Counsel for the petitioners, for the simple reason that, in the present case one opportunity was given to the petitioners-applicants for amendment 17 wp3491.11 of the written statement. It is also not in dispute that on the date of which amended copy of the written statement was filed on record, on the same day, second application for amendment of the written statement was filed. 12. The Hon'ble Supreme Court in the case of Vidyabai and others vs. Padmalatha and another reported in A.I.R. 2009 S.C. 1433 in para-7 has discussed the legislative intent behind bringing the proviso to Rule 17 Order 6 of the Code of Civil Procedure. Para-7 of the said judgment reads thus : "7. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 176 of the Code, which reads as under : "Provided that no application for amendment shall be allowed after the trial has 18 wp3491.11 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." It is couched in a mandatory form. The court's jurisdiction to allow such application is taken away unless the conditions precedent therefor are satisfied, viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial." In para-8 of the said judgment, the Supreme Court held that, the date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, would amount to 'commencement of proceeding'. Therefore, the 19 wp3491.11 judgment of the Supreme Court in the case of Vidyabai (supra) is after discussing the legislative intent in adding the proviso to Rule 17 Order 6 of the Code of Civil Procedure. The Supreme Court in the said judgment has also taken a view that the provisions of Order 6 Rule 17 of the Code of Civil Procedure are in mandatory form. The Court's jurisdiction to allow such application under Order 6 Rule 17 of the Code of Civil Procedure is taken away unless the conditions precedent therefor are satisfied. That Court must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. 13. Therefore, taking overall view of the matter and in the facts of this case, it was possible for the applicants-petitioners to have raised the matter before commencement of the trial either in the main written statement or by way of amendment in the written statement when the application at Exhibit-37 for amendment of the 20 wp3491.11 written statement was allowed by the trial Court. From reading the application at Exhibit-45 in its entirety, I am of the opinion that, no due diligence was shown by the applicants-petitioners. Therefore, the trial Court has not committed any error in passing the impugned order. The view taken by the trial Court is a reasonable view. The view taken by the trial Court is in consonance with the material brought on record. Once reasonable view is taken and findings are not perverse, even though another view is possible, is no ground to entertain the writ petition under Article 226 and 227 of the Constitution of India. 14. For the reasons aforesaid, the writ petition is devoid of any merits, same stands rejected. Rule discharged. sd/- [S.S. SHINDE, J.] sut/DEC11