1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR LPA NO. 328 OF 2008 IN WRIT PETITION NO. 439 OF 2008 (Sau. Vijaya Vedprakash Mittal & Anr. vs. Brijmohan Maheshchandraji Agrawal) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : S.A. BOBDE & F.M. REIS, JJ. JUNE 30, 2009. Heard Shri Saboo, learned counsel for the appellants and Shri Naidu, learned counsel for the respondents. This is an appeal against the order dated dated 30.7.2008 passed the learned Single Judge in Writ Petition No. 439 of 2008 whereby the said petition was rejected and the order dated 3.12.2007 passed by the learned Joint Civil Judge, Senior Division, Nagpur in Special Civil Suit No. 465 of 2004 dismissing an application under Order 6, Rule 17 of Civil Procedure Code for amendment of the written statement was maintained. It is the case of the petitioners that the respondents have filed a suit for specific performance of agreement of sale after exchanging the letters dated 11.7.2003 and 30.7.2003 between the parties and in the said suit the petitioners had 2 filed a written statement on 16.8.2004. After issues were framed on 4.1.2007, the evidence of respondents was closed and the petitioners led their evidence. However, on 29.10.2007, the petitioners filed an application for amendment of their written statement whereby they sought to insert paras 19 to 32 to their written statement. The Civil Judge by order dated 3.12.2007 dismissed the said application on the ground that after the amended provisions of Order 6, Rule 17 of Civil Procedure Code, 1908, came into force with effect from 1.7.2002, it would be impermissible to allow such amendment unless it is shown that in spite of due diligence, the petitioners could not have raised these pleas. Aggrieved by the said order, the petitioners preferred writ petition before the learned Single Judge and the same came to be rejected essentially on the ground that the application for amendment does not disclose any good ground for not raising the pleas sought to be raised in the amended written statement before the trial had made headway. Being aggrieved by the said judgment dated 30.7.2008, the present appeal has been preferred. The learned counsel for the appellants 3 has submitted that the learned Single Judge ought to have permitted the application for amendment as according to him, the same was necessary for the purpose of adjudicating the matter in dispute. It is further his contention that the Court should be liberal in granting application for amendment and according to him, there was no substantial variation in the defence earlier raised by the petitioners. In support of his submissions, the learned counsel for the appellants has placed reliance upon the judgment of the Hon’ble Apex Court in the case of Pradeep Singhvi vs. Heero Dhankani, reported at (2004) 13 SCC 432. On the other hand, the learned counsel for the respondents has submitted that there was no case made out by the petitioners as to why the said application for amendment was not moved before the trial had commenced and in view amendment to the Civil Procedure Code in 2002, the said application for amendment was rightly dismissed by the learned trial Judge. In support of his submissions, the learned counsel for the respondents has placed reliance upon the judgment of the Hon’ble Apex Court in the case of Ajendraprasadji N. Pande vs. Sami Keshavprakeshdasji N., reported at AIR 2007 SC 806. 4 Having heard the learned counsel for the parties and after perusing the impugned order, we find that the learned Single Judge has dismissed the said writ petition on the ground that the only reason given for filing the said application after the evidence of the petitioners was started, was on account of communication gap between the petitioners and their counsel. It was further held that the failure to communicate with the counsel cannot be allowed to negate the restrictions imposed by the provisions whereby Order 6, Rule 17 of Civil Procedure Code was amended. These restrictions were imposed in order to inject speed in the trial of the civil suits, in order to curtail amendments after the trial makes substantial progress. We find that the learned Single Judge has decided the petition after considering the provisions of law applicable to the facts of the present case. On perusal of the application for amendment of the written statement, there is nothing disclosed in the said application as to what prevented the petitioners from seeking the said amendment before the commencement of the trial. The proviso to Order 6, Rule 17 of the Civil Procedure Code provides that no application for amendment shall be allowed after the trial has commenced unless the Court has come 5 to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The learned trial Judge after considering the fact that the evidence of the plaintiff has already been closed and evidence of defendant No.2 was also completed, came to the conclusion that there was nothing on record to show that the proposed amendment could not have been incorporated earlier despite due diligence on the part of the petitioner. In Rajkumar Gurawara vs. M/s. S.K. Sarwagi & Co. Pvt. Ltd., reported at AIR 2008 SC 2303, the Hon’ble Apex Court has, after reproducing the provisions of Order 6, Rule 17 of Civil Procedure Code, held in para 51 of the judgment as under: “The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this rule is subject to proviso appended therein. The said rule with proviso again substituted by Act 22 of 2002 with effect from 1.7.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings able 6 to satisfy the Court that in spite of due diligence could not raise the issue before the commencement of trial and the Court satisfies their explanation, amendment can be allowed even after commencement of the trial. To put it clear, Order VI, Rule 17 C.P.C. 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 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 the 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 Hon’ble Apex Court in another judgment in the case of Chander Kanta Bansal vs. 7 Rajinder Singh Anand, reported at AIR 2008 SC 2234, has held that the entire object of the amendment to Order 6, Rule 17 of C.P.C. is to stall the filing of application for amendment of pleadings subsequent to the commencement of trial to avoid surprises so that the party has sufficient knowledge of the others case. It also helps in checking the delays in filing the application. Once the trial commences on the known pleas, it will be very difficult for any side to reconcile. Considering the said judgments of the Hon’ble Apex Court and on perusing the record, it is clear that the petitioners have failed to disclose that in spite of due diligence, they could not have raised the matter before the commencement of the trial. There is no justification at all shown what prevented the appellant to incorporate the alleged facts before the commencement of trial. As the conditions to the proviso to Order 6, Rule 17 of the Civil Procedure Code, have not been satisfied by the appellants, the learned trial Judge was justified to refuse leave to the appellants to amend the written statement after the trial had commenced. The judgment relied upon by the appellants is not applicable to the facts of the present case. In the said case, the order refusing the application for amendment was passed on 6.2.2001 8 and the application was filed somewhere on 15.1.2001 which was much before the proviso appended to Order VI Rule 17 of Civil Procedure Code came into force with effect from 1.7.2002. The Hon’ble Apex Court in the case of State Bank of Hyderabad vs. Town Municipal Council, reported at 2007(1) SCC 765, has held that there can be no doubt whatsoever that suits which have been filed in the year 1998, the proviso to Order VI, Rule 17 of Civil Procedure Code shall not apply. As such, the said judgment is not applicable to the facts of the present case as admittedly the suit in the present case was filed in the year 2004 after the said amendment came into force. In such circumstances, the learned Single Judge was justified in dismissing the writ petition filed by the appellants. No interference is called for in the impugned judgment passed by the learned Single Judge dismissing writ petition filed by the appellants. In view of the above, there is no merit in the above appeal and as such the present appeal stands dismissed. JUDGE JUDGE *GS.