IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 332 of 2008 Gulab Singh S/o Shri Naag Chand R/o Village Chandan Bari Via Prem Nagar, Dehradun. ………Petitioner Versus 1. Dayanand Shiksha Sansthan U.P. Kanpur, Registered under the Indian Registration and Societies Act Through its authorized signatory Dr. A.K. Srivastava, S/o Shri B.N. Srivastava Vasant Vihar, Dehradun. ……Plaintiff/respondent 2. Master Vijay Singh S/o Shri Rajinder Singh through mother and natural guardian Basanti Devi R/o Village Chandan Bari via Prem Nagar, Dehradun. .....Performa defendant/Respondent. Shri Arvind Vashistha, Advocate for the petitioner. Shri Bhupesh Kandpal, Advocate holding brief of Shri Dharmendra Barthwal, counsel for respondent No. 1. Hon’ble Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 read with 227 of Constitution of India, the petitioner has sought writ in the nature of certiorari quashing the order dated 14.01.2008, passed by Additional District Judge IInd, Dehradun, in suit No. 242 of 2002, Dayanand Shiksha Sansthan Vs. Gulab Singh and another, whereby an application 93A, for amendment in the plaint, was allowed by said court. 2 2. Heard learned counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit. 3. Brief facts of the case are that suit No. 242 of 2002, was instituted by respondent No. 1 Dayanand Shiksha Sansthan against the defendants, seeking specific performance of contract and direction to the defendants to execute the sale deed in favour of the plaintiff (present respondent No. 1) in respect of the property, bearing khasra Nos.1108/2, 1409/1, 1409/2, 1410/2, 1395 and1416, measuring total area 2.5 acres, situated in Village Mauja Kandoli, Pargana Pachwadoon, District Dehradun, before Civil Judge, Senior Division, Dehradun. Said suit appears to have been transferred to the court of Additional District Judge IInd, for trial. Copy of the plaint, which is annexure-1 to the writ petition, shows that there were three defendants in the suit namely Gulab Singh (present petitioner), Prem Singh (said to have died before the institution of the suit) and Master Vijay Singh (son of Rajendra Singh through his mother and natural guardian Basanti Devi). It appears that Gulab Singh (defendant No. 1/present petitioner) contested the suit and filed his written statement before the trial court. Written statement was also filed on behalf of defendant 3 No. 3 Vijay Singh, who pleaded in para-18 of his written statement that defendant No. 2 Prem Singh had already died on 23.09.2001. Said fact has been pleaded also in para-22 of the same written statement. Copy of this written statement, which is filed as annexure-2 to the rejoinder affidavit, shows that it was filed before the trial court on 29.01.2003. Apart from this, copy of written statement, which is annexure-1 to the rejoinder affidavit, filed on behalf of the petitioner, shows that the petitioner (defendant No. 1) in his written statement dated 28.04.2003, also pleaded in his para-18 and para-22 that defendant No. 2- Prem Singh had died on 23.09.2001. Copy of the plaint, which is annexure-1 to the writ petition shows that the suit was instituted on 04.04.2002. As such, defendant No. 2 Prem Singh, was a dead person, when the suit was instituted against him. Application 93A was moved on behalf of the plaintiff on 29.07.2006, for not only bringing on record Smt. Vidya Devi as defendant No. 2/1 in place of the dead person- Prem Singh but also for adding more than 30 paragraphs in the plaint, which originally consisted of only 13 paragraphs. Objections paper No. 99-C and 110-C, were filed on behalf of the defendants, against the amendment application, before the trial court, alleging that the proposed amendment cannot be allowed. However, the trial court allowed 4 the amendment application, moved under Order VI Rule 17 read with Section 151 of Code of Civil Procedure, 1908, and Section 21 (1) of Indian Limitation Act, 1963. Aggrieved by said order, this writ petition is filed by defendant No. 1. 4. Proviso to Rule 17 of Order VI of Code of Civil Procedure, 1908, provides 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 the trial. In the present case, it has come on the record that not only the issues had already been framed in the suit but also affidavits were filed by the plaintiff’s witnesses and the cross examination was on. As such, on the face of it, the application for amendment, moved on behalf of the plaintiff was hit by proviso to Rule 17 of Order VI of the aforesaid Code. In this connection, it is pertinent to mention here that the plaintiff had the knowledge of date of death of Prem Singh, through the written statement filed in January 2003, and the amendment application is moved only in the year 2006, as such, it cannot be said that the plaintiff acted with due diligence, as required under the aforesaid proviso. 5 5. Even otherwise, the suit against dead person (defendant No. 2-Prem Singh) was not maintainable and it was not open for the trial court to permit the substitution of his legal representative (proposed defendant No. 2/1 Vidya Devi). Order XXII of the Code of Civil Procedure, 1908, only provides substitution of legal representatives of the party, who had died during the pendency of the suit or appeal. The plaintiff cannot be allowed to take shelter of Proviso to Section 21 of Indian Limitation Act, 1963, to substitute the legal representatives of the dead party, particularly when it has not acted promptly for impleadment of legal representatives of such party. Only after the case has reached to the stage of final hearing, plaintiff sought to implead the legal representatives of dead person. It cannot be said in the circumstances of this case that the plaintiff had acted in good faith. The trial court has committed grave error of law by allowing the amendment application in the circumstances of the case merely by observing that in one of the paras in the written statement, date of death was mentioned as 23.09.2001, but date of WILL was mentioned as 02.02.2002. 6. Learned counsel for the respondent/plaintiff drew attention of this Court to Article 137 of Schedule of Indian 6 Limitation Act, 1963, and argued that period of limitation for moving such application is three years. In the opinion of this Court, Article 137 does not apply to the application, moved under Order VI Rule 17 of the Code of Civil Procedure, 1908, nor is it meant to dilute the provisions contained in said rule. It does not appeal even to the commonsense that for substitution of legal representatives of a party, who died during the pendency of the suit, period of limitation would be less (90 days) as against the period (three years), argued to be provided for substituting legal representatives of a dead party in the suit. 7. For the reasons, as discussed above, the impugned order dated 14.01.2008, passed by Additional District Judge IInd, Dehradun, in suit No. 242 of 2002, whereby application 93A is allowed, is quashed. Application 93-A, moved in the suit shall stand dismissed. Writ petition accordingly stands allowed. (Prafulla C. Pant, J.) Dt:07.10.2009 Sweta 7