HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
CIVIL REVISION PETITION No.1811 of 2014
24-12-2014
P.Durga Reddy and another.Petitioners
B.Yadi Reddy . Respondent
Counsel for the Revision Petitioners : Sri V.Ravinder Rao
Counsel for the Respondent : Sri P.Venkat Reddy
<Gist :
>Head Note:
? Cases referred:
1. 2014(2) ALT 526
2. 2005(5) SCJ 519
3. 2007(2) SCJ 569
4. 2005(3) SCJ 303
5. AIR 2007 SC 2511
6. (2007)6 SCC 737
7. (2008)14 SCC 364
8. 2012(2) SCJ 436
9. 2014(3) ALD 361
10. (2006)4 SCC 385
11. 2011(5) ALD 445
12. AIR 2004 SC 4102
13. AIR 2007 SC 113
14. 2005(5) ALT 429
15. 2008(5) ALD 322
16. 2014(2) ALT 526
17. AIR 2008 SC 2234
18. (2009)11 SCC 329
19. (2005)13 SCC 89
20. Andh W.R. 1973-2-253
21. (2010)8 SCC 329
22. (2013)9 SCC 374
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
CIVIL REVISION PETITION No.1811 of 2014
ORDER :
1) The unsuccessful petitioners filed this revision against the
order dated 28.04.2014 in I.A. No.1866 of 2013 in O.S. No.585 of 2007
on the file of Principal Junior Civil Judge, Sangareddy. The
Petitioners who are plaintiffs initially filed the suit in O.S. No.585 of
2007 for specific performance of agreement for sale. Prior to it one
S.Gopal Reddy filed a suit in O.S.No.417 of 2007 for declaration of
title against the Petitioners and both the suits were clubbed and
evidence was lead in O.S. No.417 of 2007. After evidence let in by
both sides and before advancing arguments, the Petitioners filed an
application under Order VI Rule 17 C.P.C seeking permission to
interchange the boundaries on northern and southern side stating that
there was a typographical mistake in the schedule annexed in O.S.
No.585 of 2007. In the said I.A. the Respondents filed counter
affidavit and contended that on the aspect of boundaries D.Ws 2 to 5
were cross-examined and if the proposed amendment is allowed, by
changing the boundaries of the schedule land which is more
particularly elicited in the cross-examination, there is every
possibility to the Plaintiffs to fill up the lacunae and prayed to dismiss
the application.
2) After hearing both sides and after perusal of the material on
record, the trial Court dismissed the application holding that the
petitioners could not explain the delay in seeking amendment to get
over the rigidity of proviso to Order VI Rule 17 C.P.C. basing on the
expression of this Court in Veluri Raja Rajeswari V. Veluri
Santhansagar Reddy .
3) Aggrieved by the said order the Petitioners/Plaintiffs
preferred the present revision contending that the Court below failed
to appreciate that the mistake in the boundaries mentioned in the
suit schedule is an inadvertent one and typographical error and
amendment of which cannot be tested on the ground of due diligence,
that soon after noticing the typographical mistake in the plaint
schedule and in the body of the plaint the application was filed and
hence the concept of due diligence has no application, that the
defendant did not dispute the boundaries as mentioned in the plaint
in the written statement, that the only question was about non-
mention of boundaries in the agreement, that the Court below
erroneously found fault with the Petitioners in not getting the mistake
rectified at the earlier stages of the suit while it is the specific case
of the Petitioners that the mistake is typographical and it was noticed
recently and seeks to allow the revision by setting aside the dismissal
order of trial Court. The learned counsel during the course of
arguments reiterated the same. Whereas the learned counsel for the
Respondent contended that there is nothing to interfere in the order
of the lower Court by this Court while sitting in the revision and
prayed to dismiss the revision.
4) Now, the points for consideration are
(i) Whether the impugned order requires interference and
if so, with what observations?
(ii) To what relief?
POINT No.1:
5) The order VI Rule 17 prior to amendment by Act 46/99 scope
was vividly enlightened by several expressions of the Constitutional
Courts in saying even at the stage of second appeal also amendment
of pleadings can be allowed, provided it does not effect or prejudice
the rights of the opposite party, muchless changes the cause of
action. However, that liberal approach is curtailed by taking away
the right once trial commenced by Amended Act 46/99. It is no doubt
with a liberal approach to be required as procedural law is the hand
maid and not mistress of justice, there was a further amendment that
was proposed and ultimately came into force by amended Act 22/2002
with effect from 01.07.2002 introducing the proviso to permit
amendment which could not be sought before commencement of trial
despite due diligence. For more clarity, the order VI Rule 17 is
required to be reproduced which reads as follows:
17. Amendment of Pleadings.- The Court may at any stage of the
proceedings allow either party to alter or amend his pleadings in
such manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the purpose of
determining the real questions in controversy between the parties:
Provided 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 trial
6) From the above, the proviso is an exception to the taking
away the right of amendment once the trial is commenced, to
subserve the ends of justice in saying, where 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. This is the
important rider required to be satisfied, no doubt in other respects,
the law existing prior to the amendment by Acts 46/99 and 22/2002
comes to the aid of the Court if that condition is satisfied. It was the
interpretation initially laid down by the Apex Court in Salem
Advocate Bar Association, T.N V. Union of India known as Salem
Bar Association case-2. The said scope of order VI Rule 17 after
amendment by Act 22 of 2002 with effect from 01.07.2002 was
enlightened in the said expression of Salem Bar Association Case-2
supra was relied upon in Ajendraprasadji N.Pande V. Swami
Keshavprakeshdasji N. that under the proviso no application for
amendment shall be allowed after trial has commenced, unless
despite of due diligence, the matter could not be raised before
commencement of the trial. It is to say that once trial of the case has
commenced, no application of pleadings shall be allowed unless the
above requirement in the proviso of due diligence is satisfied. No
doubt it was held in Kailash V. Nankhu that trial commences from
hearing and settlement of issues and filing of chief affidavit of
plaintiff. It is referring to some of the expressions among other in
Andhra Bank V. ABN Amro Bank N.V it was held that delay itself is
no ground for refusal of prayer for amendment as the only question to
be considered by Court is whether such amendment would be
necessary for decision of the real controversy between the parties in
suit and at that stage the Court cannot go into question of merit of
amendment. Once trial commenced, amendment sought, to satisfy
the requirement of due diligence. It was also held by taking a similar
view in the other expression in Ramachandra Sakharam Mahajan V.
Damodar Trimbak Tanksale that when the amendment sought for
would enable the Court to pinpointedly consider the real dispute
between the parties and thereby help to render a decision more
satisfactorily, it ought to be allowed. In Rajkumar Gurawara (dead)
through LRs V. S.K.Sarwagi & Co. Pvt. Ltd. it was held at Para
No.13 that though pre-trial amendments can be allowed on such
terms where Court finds just, for once trial commenced the showing
of due diligence as per proviso to Order VI Rule 17 C.P.C is the
prerequisite. These expressions in fact say the basic requirement of
due diligence is to be satisfied, once trial is commenced, though for
the pre-trial amendment it can be liberal made subject to other
riders. It is in the wake of the above, in J.Samuel V. Gattu mahesh ,
it was held in paras 16 to 22 in nutshell by referring to
Ajendraprasadji supra that the word due diligence is the idea that
reasonable investigation is necessary before certain kinds of relief are
requested. Due diligent efforts are a requirement for a party seeking
to use the adjudicatory mechanism to attend an anticipatory relief.
An advocate representing some one must engage in due diligence to
determine that the representations made are factually accurate and
sufficient. The term due diligence is specifically used in the Code so
as to provide a test for determining whether to exercise the discretion
the situations of requested amendment after the commencement of
trial or not. The term due diligence determines the scope of a partys
constructive knowledge, claim and is very critical to the outcome of
the suit. No doubt, typographical errors or mistakes that can be
considered otherwise, however, when plaint is supposed to be singed
by the party and at the advice of the counsel signed and verified the
pleading by showed some attention, this omission could have been
noticed and rectified there itself, that also cannot be construed as
due diligence. In Veluri Raja Rajeswari supra this Court also held
the pre-requisite where trial commenced to show due diligence for
not seeking the amendment of the pleading earlier. In the later
expression of this Court in Waheeda Begum V. Md.Yakub by
referring to several expressions including the Rajkumar Gurawara
supra particularly at para No.24 that as per the expression, it confers
jurisdiction on the Court to allow either party to alter or to amend
the pleadings at any stage of pleadings and on such terms as may be
just, provided such amendment seeks determination of the real
question and controversy between the parties; that pre-trial
amendments are to be allowed more liberally, than those
amendments sought to be made after commencement of the trial. It
also referred J.Samuel supra particularly in para No.26 in saying that
no application for amendment shall be allowed after the trial has
commenced, unless the Court has come to the conclusion that in spite
of due diligence, the party could not raise the matter before the
commencement of the trial. It also referred the expression in Rajesh
Kumar Agarwal V. K.K.Modi that the Court can take note of events
subsequent to the filing of the suit, where necessary, to shorten the
litigation. It is by referring to the expressions, it was held on the
facts in Waheeda begum supra that the petitioners could establish
that in spite of due diligence they could not raise the matters before
commencement of trial and the bar laid down under proviso to Order
VI Rule 17 C.P.C thus no way applied and consequently dismissal of
the amendment petition by the trial Court is held unjustified.
7) Even the decision of Single Judge of this Court in Narne
Estates (P) Ltd V. N.Gopal Naidu the law laid down in
Ajendraprasadji supra was referred in holding that petition filed five
years later to the plaint adding prayer for declaration of G.P.A
executed in favour of the 1st respondent by various land owners while
he was working as Director of the Company, for amendment of the
same held unsustainable for lack of due diligence, though otherwise
as held in Pankaja V. Yellappa and State of A.P. V. Pioneer
Builders , the mere delay itself is not a ground to reject the
amendment when it results to multiplicity of proceedings. The other
decision placed reliance of this Court in Rachabattuni Govinda Rao
V. Jonnadula Sambasiva Rao on facts held the amendment sought
in the suit for recovery of amount, to incorporate a statement to the
effect that the consideration was paid through a cheque drawn on
S.B.I, after the facts elicited in the cross-examination of P.W-1 held
cannot be allowed for lack of due diligence. The decision in another
expression of single Judge of this Court in Siluveru Lakshmamma V.
Siluveru Sankaraiah on facts held the after thought amendments
after commencement of trial can be disallowed as unexplained delay
and latches are also grounds to negate the amendment. The Court
referred Pioneer Builders supra and also Salem Bar Association case
supra before arriving the conclusion. The other expression of this
Court in Muthukur Gram Panchayat rep. by its Executive Officer V.
Kakuturu Ramesh Reddy was in the suit for permanent injunction
filed claiming easementary right to restrain the defendant-panchayat
from making any constructions in the suit site, plaint sought
amendment after commencement of trial and during cross-
examination of plaintiff was dismissed for lack of due diligence. The
other expression of the Apex Court in Chander Kanta Bansal V.
Rajinder Singh Anand it was held that in a suit for injunction
restraining the defendant from obstructing the lane in the suit
property, defendant seeking amendment of written statement after
closure of evidence of both sides to file partition agreement that was
not brought in the course of evidence and the same when allowed by
amendment to bring in evidence tantamounts to retracting what as
pleaded in the written statement held amendment cannot be allowed
for lack of due diligence in saying that while exercise of discretion,
care should be taken to see that injustice and prejudice of an
irremediable character are not inflicted upon the opposite party
under pretence of allowing amendment. It was held that amendment
which appears clearly to be an after thought to be disallowed.
8) The other decision placed reliance is of the Apex Court in
Peethani Suryanarayana V. Repaka Venkata Ramana Kishore
where it was held that Court holds power to allow such amendment,
provided the application is bonafide and does not cause injustice to
either side and does not affect the rights already accrued to the other
side. It was on facts in the suit for partition amendment of plaint
saying some typographical error is there as to subject matter that
requires correction when it causes no prejudice to the so called
pendentelite purchasers of suit land by correction of survey Nos.462
and 463 from what plaint originally described of Survey No.165, when
that Survey No.165 is re-assigned as 463 and the mentioning is to
correct the typographical mistake. For that conclusion referred
Sajjan Kumar V. Ram Kishan para-5 holding the amendment sought
is for the purpose of bringing to the record the real question in
controversy between the parties and refusal to permit the
amendment would create needless complications at the stage of
execution in the event of the appellant-plaintiff succeed in the suit.
In fact, the boundary description survey number or boundaries if
outcome of bonafide mistakes can be allowed if not come under
Sections 152 or 153 C.P.C atleast under Section 151 C.P.C to subserve
the ends of justice. In this regard, it was laid down way back in the
expression of this Court in Kalkonda Pandu Rangaiah V. Kalkonda
Krishnaih as follows:
As a result of the above discussion my conclusions on the
three points formulated above are as follows:- Where clerical
or arithmetical mistakes occur in copying the plaint schedules
from the documents anterior to the suit the proceedings in
the suit can always be corrected under Section 152 C.P.C. In
such cases even the documents on the basis of which the suit
was filed may be amended either in a suit under Section 31 of
the Specific Relief Act or in a proper case even by an
application under Section 152 C.P.C provided it is a case of
misdescription and not one of disputed identity. In such
cases, if Section 152 is invoked it would obviate a suit which
would ultimately bring the same result. In all cases, where
clerical or arithmetical errors creep-in in the plaint and as a
consequence in the decrees as well, they can be rectified at
any time even after a final decree. A case of such an
amendment petition under Section 152 C.P.C. filed in a
pending suit even after a preliminary decree is passed therein
is an a fortiori case.
9) The law succinctly laid down from the expressions is that the
requirement of satisfying the due diligence concept for the trial once
commenced and in particular for post trial amendment is a mandatory
requirement being a pre-requisite, besides the other considerations,
where the amendment is necessary to resolve the real controversy
and where does not cause grave prejudice or injustice to the other
side and where it does not alter the cause of action or inconsistent to
the existing material in the pleadings on record. It can be allowed
where the amendment is necessary to explain the material on record.
10) From this undisputedly the trial is at the fag end of both
suits clubbed together and the plaint schedule boundaries are
disputing by the defendants of the suit in the specific performance
suit O.S. No.585 of 2007 and the same is there also in the evidence on
plaintiffs side of O.S. No.417 of 2007 where the suit in O.S. No.585 of
2007 clubbed with for joint trial and the defendants in O.S. No.585 of
2007 let in evidence as D.Ws 1 and 2 and also on their side D.Ws 3, 4
and 5 examined and the plaintiff in O.S. No.585 of 2007 as D.W-1 in
the chief examination not explained the same. It is no doubt, the
contention of the revision petitioner who is the plaintiff in O.S.
No.585 of 2007 in seeking amendment of the two of the boundaries to
the plaint schedule supra is that it could not be noticed even at that
stage and it is only in the cross-examination page No.36, para No.2 it
was elicited and in page 26, Para No.3 of the written statement of the
defendants in O.S. No.585 of 2007, the defendants did not even
dispute the boundaries. It is in fact, the proposed amendment sought
for is not for Eastern and Western boundaries, but for North to change
as South and South to change as North and not even to introduce any
new names, but for saying the mistake occurred by inadvertence and
unnoticed. It is no doubt true in the so called agreement for sale of
which the suit for specific performance of O.S. No.585 of 2007
maintained, the sale agreement does not contain boundaries and it is
only in the plaint it is specified as part of S.No.295 admeasuring Ac.0-
20 guntas within the four boundaries and now sought for amendment
of the boundary name mentioned as North as South and South as
North. From this, there is nothing to show what grave prejudice being
caused to the defendants in O.S. No.585 of 2007 or plaintiffs in O.S.
No.417 of 2007 when they are disputing the very contract for sale in
favour of plaintiff in O.S. No.585 of 2007 and its enforceability and
not even admitting of sale is only within the boundaries and by change
of the Northern to Southern and Southern to Northern, it is
inconsistent to the stand already taken in the plaint pleadings or
causes thereby any grave prejudice to the opposite party. When such
is the case, the amendment when required to resolve the real
controversy and to avoid future complications in the event of success
in execution or the like. It is clearly stated that it could not be
noticed before pre-trial stage, that too when the defendants written
statement in O.S. No.585 of 2007 no way disputed the boundaries and
its correctness. Thus, it can be said that the plaintiff in O.S. No.585
of 2007 could not seek the amendment before commencement of trial
despite due diligence, as it is noticed from the evidence let in, in the
suits clubbed together after commencement of trial and when it is to
resolve the real controversy as per the plaintiff in O.S. No.585 of 2007
and when delay itself is not a ground to reject the amendment, the
trial Court ought to have allowed the amendment, when it no way
causes withdrawal of any inconsistent admission in the pleadings or
grave prejudice to other side or changes the cause of action or nature
of suit, but for the said delay to compensate. The lower Courts order
dismissing the amendment application now sought to be intervened in
the revision within its limited scope for saying is improper exercise of
jurisdiction vested and when it causes prejudice to the revision
petitioners/plaintiffs in O.S. No.585 of 2007, this Court has to
interfere to set aside the order impugned in the order vide Shalini
Shyam Shetty V. Rajendra Shankar Patil that was followed in
Sameer Suresh Gupta V. Rahul Kumar Agarwal .
11) Accordingly and in the result, the revision is allowed by
setting aside the dismissal order of amendment sought in I.A. No.1866
of 2014 in O.S. No.585 of 2007 by the trial Court by allowing the
amendment subject to payment of costs of Rs.5,000/- by the
Petitioner/Plaintiffs in O.S.No.585 of 2007 to the defendant in that
suit within 15 days from the date of receipt of this order and file
proof before the trial Court, failing which the order of the lower
Court holds good. There is no order as to costs in the revision.
12) Miscellaneous Petitions pending, if any, in this revision shall
stand closed.
________________________
Dr. B. SIVA SANKARA RAO, J
Date: -12-2014
CIVIL REVISION PETITION No.1811 of 2014
24-12-2014
P.Durga Reddy and another.Petitioners
B.Yadi Reddy . Respondent
Counsel for the Revision Petitioners : Sri V.Ravinder Rao
Counsel for the Respondent : Sri P.Venkat Reddy
<Gist :
>Head Note:
? Cases referred:
1. 2014(2) ALT 526
2. 2005(5) SCJ 519
3. 2007(2) SCJ 569
4. 2005(3) SCJ 303
5. AIR 2007 SC 2511
6. (2007)6 SCC 737
7. (2008)14 SCC 364
8. 2012(2) SCJ 436
9. 2014(3) ALD 361
10. (2006)4 SCC 385
11. 2011(5) ALD 445
12. AIR 2004 SC 4102
13. AIR 2007 SC 113
14. 2005(5) ALT 429
15. 2008(5) ALD 322
16. 2014(2) ALT 526
17. AIR 2008 SC 2234
18. (2009)11 SCC 329
19. (2005)13 SCC 89
20. Andh W.R. 1973-2-253
21. (2010)8 SCC 329
22. (2013)9 SCC 374
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
CIVIL REVISION PETITION No.1811 of 2014
ORDER :
1) The unsuccessful petitioners filed this revision against the
order dated 28.04.2014 in I.A. No.1866 of 2013 in O.S. No.585 of 2007
on the file of Principal Junior Civil Judge, Sangareddy. The
Petitioners who are plaintiffs initially filed the suit in O.S. No.585 of
2007 for specific performance of agreement for sale. Prior to it one
S.Gopal Reddy filed a suit in O.S.No.417 of 2007 for declaration of
title against the Petitioners and both the suits were clubbed and
evidence was lead in O.S. No.417 of 2007. After evidence let in by
both sides and before advancing arguments, the Petitioners filed an
application under Order VI Rule 17 C.P.C seeking permission to
interchange the boundaries on northern and southern side stating that
there was a typographical mistake in the schedule annexed in O.S.
No.585 of 2007. In the said I.A. the Respondents filed counter
affidavit and contended that on the aspect of boundaries D.Ws 2 to 5
were cross-examined and if the proposed amendment is allowed, by
changing the boundaries of the schedule land which is more
particularly elicited in the cross-examination, there is every
possibility to the Plaintiffs to fill up the lacunae and prayed to dismiss
the application.
2) After hearing both sides and after perusal of the material on
record, the trial Court dismissed the application holding that the
petitioners could not explain the delay in seeking amendment to get
over the rigidity of proviso to Order VI Rule 17 C.P.C. basing on the
expression of this Court in Veluri Raja Rajeswari V. Veluri
Santhansagar Reddy .
3) Aggrieved by the said order the Petitioners/Plaintiffs
preferred the present revision contending that the Court below failed
to appreciate that the mistake in the boundaries mentioned in the
suit schedule is an inadvertent one and typographical error and
amendment of which cannot be tested on the ground of due diligence,
that soon after noticing the typographical mistake in the plaint
schedule and in the body of the plaint the application was filed and
hence the concept of due diligence has no application, that the
defendant did not dispute the boundaries as mentioned in the plaint
in the written statement, that the only question was about non-
mention of boundaries in the agreement, that the Court below
erroneously found fault with the Petitioners in not getting the mistake
rectified at the earlier stages of the suit while it is the specific case
of the Petitioners that the mistake is typographical and it was noticed
recently and seeks to allow the revision by setting aside the dismissal
order of trial Court. The learned counsel during the course of
arguments reiterated the same. Whereas the learned counsel for the
Respondent contended that there is nothing to interfere in the order
of the lower Court by this Court while sitting in the revision and
prayed to dismiss the revision.
4) Now, the points for consideration are
(i) Whether the impugned order requires interference and
if so, with what observations?
(ii) To what relief?
POINT No.1:
5) The order VI Rule 17 prior to amendment by Act 46/99 scope
was vividly enlightened by several expressions of the Constitutional
Courts in saying even at the stage of second appeal also amendment
of pleadings can be allowed, provided it does not effect or prejudice
the rights of the opposite party, muchless changes the cause of
action. However, that liberal approach is curtailed by taking away
the right once trial commenced by Amended Act 46/99. It is no doubt
with a liberal approach to be required as procedural law is the hand
maid and not mistress of justice, there was a further amendment that
was proposed and ultimately came into force by amended Act 22/2002
with effect from 01.07.2002 introducing the proviso to permit
amendment which could not be sought before commencement of trial
despite due diligence. For more clarity, the order VI Rule 17 is
required to be reproduced which reads as follows:
17. Amendment of Pleadings.- The Court may at any stage of the
proceedings allow either party to alter or amend his pleadings in
such manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the purpose of
determining the real questions in controversy between the parties:
Provided 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 trial
6) From the above, the proviso is an exception to the taking
away the right of amendment once the trial is commenced, to
subserve the ends of justice in saying, where 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. This is the
important rider required to be satisfied, no doubt in other respects,
the law existing prior to the amendment by Acts 46/99 and 22/2002
comes to the aid of the Court if that condition is satisfied. It was the
interpretation initially laid down by the Apex Court in Salem
Advocate Bar Association, T.N V. Union of India known as Salem
Bar Association case-2. The said scope of order VI Rule 17 after
amendment by Act 22 of 2002 with effect from 01.07.2002 was
enlightened in the said expression of Salem Bar Association Case-2
supra was relied upon in Ajendraprasadji N.Pande V. Swami
Keshavprakeshdasji N. that under the proviso no application for
amendment shall be allowed after trial has commenced, unless
despite of due diligence, the matter could not be raised before
commencement of the trial. It is to say that once trial of the case has
commenced, no application of pleadings shall be allowed unless the
above requirement in the proviso of due diligence is satisfied. No
doubt it was held in Kailash V. Nankhu that trial commences from
hearing and settlement of issues and filing of chief affidavit of
plaintiff. It is referring to some of the expressions among other in
Andhra Bank V. ABN Amro Bank N.V it was held that delay itself is
no ground for refusal of prayer for amendment as the only question to
be considered by Court is whether such amendment would be
necessary for decision of the real controversy between the parties in
suit and at that stage the Court cannot go into question of merit of
amendment. Once trial commenced, amendment sought, to satisfy
the requirement of due diligence. It was also held by taking a similar
view in the other expression in Ramachandra Sakharam Mahajan V.
Damodar Trimbak Tanksale that when the amendment sought for
would enable the Court to pinpointedly consider the real dispute
between the parties and thereby help to render a decision more
satisfactorily, it ought to be allowed. In Rajkumar Gurawara (dead)
through LRs V. S.K.Sarwagi & Co. Pvt. Ltd. it was held at Para
No.13 that though pre-trial amendments can be allowed on such
terms where Court finds just, for once trial commenced the showing
of due diligence as per proviso to Order VI Rule 17 C.P.C is the
prerequisite. These expressions in fact say the basic requirement of
due diligence is to be satisfied, once trial is commenced, though for
the pre-trial amendment it can be liberal made subject to other
riders. It is in the wake of the above, in J.Samuel V. Gattu mahesh ,
it was held in paras 16 to 22 in nutshell by referring to
Ajendraprasadji supra that the word due diligence is the idea that
reasonable investigation is necessary before certain kinds of relief are
requested. Due diligent efforts are a requirement for a party seeking
to use the adjudicatory mechanism to attend an anticipatory relief.
An advocate representing some one must engage in due diligence to
determine that the representations made are factually accurate and
sufficient. The term due diligence is specifically used in the Code so
as to provide a test for determining whether to exercise the discretion
the situations of requested amendment after the commencement of
trial or not. The term due diligence determines the scope of a partys
constructive knowledge, claim and is very critical to the outcome of
the suit. No doubt, typographical errors or mistakes that can be
considered otherwise, however, when plaint is supposed to be singed
by the party and at the advice of the counsel signed and verified the
pleading by showed some attention, this omission could have been
noticed and rectified there itself, that also cannot be construed as
due diligence. In Veluri Raja Rajeswari supra this Court also held
the pre-requisite where trial commenced to show due diligence for
not seeking the amendment of the pleading earlier. In the later
expression of this Court in Waheeda Begum V. Md.Yakub by
referring to several expressions including the Rajkumar Gurawara
supra particularly at para No.24 that as per the expression, it confers
jurisdiction on the Court to allow either party to alter or to amend
the pleadings at any stage of pleadings and on such terms as may be
just, provided such amendment seeks determination of the real
question and controversy between the parties; that pre-trial
amendments are to be allowed more liberally, than those
amendments sought to be made after commencement of the trial. It
also referred J.Samuel supra particularly in para No.26 in saying that
no application for amendment shall be allowed after the trial has
commenced, unless the Court has come to the conclusion that in spite
of due diligence, the party could not raise the matter before the
commencement of the trial. It also referred the expression in Rajesh
Kumar Agarwal V. K.K.Modi that the Court can take note of events
subsequent to the filing of the suit, where necessary, to shorten the
litigation. It is by referring to the expressions, it was held on the
facts in Waheeda begum supra that the petitioners could establish
that in spite of due diligence they could not raise the matters before
commencement of trial and the bar laid down under proviso to Order
VI Rule 17 C.P.C thus no way applied and consequently dismissal of
the amendment petition by the trial Court is held unjustified.
7) Even the decision of Single Judge of this Court in Narne
Estates (P) Ltd V. N.Gopal Naidu the law laid down in
Ajendraprasadji supra was referred in holding that petition filed five
years later to the plaint adding prayer for declaration of G.P.A
executed in favour of the 1st respondent by various land owners while
he was working as Director of the Company, for amendment of the
same held unsustainable for lack of due diligence, though otherwise
as held in Pankaja V. Yellappa and State of A.P. V. Pioneer
Builders , the mere delay itself is not a ground to reject the
amendment when it results to multiplicity of proceedings. The other
decision placed reliance of this Court in Rachabattuni Govinda Rao
V. Jonnadula Sambasiva Rao on facts held the amendment sought
in the suit for recovery of amount, to incorporate a statement to the
effect that the consideration was paid through a cheque drawn on
S.B.I, after the facts elicited in the cross-examination of P.W-1 held
cannot be allowed for lack of due diligence. The decision in another
expression of single Judge of this Court in Siluveru Lakshmamma V.
Siluveru Sankaraiah on facts held the after thought amendments
after commencement of trial can be disallowed as unexplained delay
and latches are also grounds to negate the amendment. The Court
referred Pioneer Builders supra and also Salem Bar Association case
supra before arriving the conclusion. The other expression of this
Court in Muthukur Gram Panchayat rep. by its Executive Officer V.
Kakuturu Ramesh Reddy was in the suit for permanent injunction
filed claiming easementary right to restrain the defendant-panchayat
from making any constructions in the suit site, plaint sought
amendment after commencement of trial and during cross-
examination of plaintiff was dismissed for lack of due diligence. The
other expression of the Apex Court in Chander Kanta Bansal V.
Rajinder Singh Anand it was held that in a suit for injunction
restraining the defendant from obstructing the lane in the suit
property, defendant seeking amendment of written statement after
closure of evidence of both sides to file partition agreement that was
not brought in the course of evidence and the same when allowed by
amendment to bring in evidence tantamounts to retracting what as
pleaded in the written statement held amendment cannot be allowed
for lack of due diligence in saying that while exercise of discretion,
care should be taken to see that injustice and prejudice of an
irremediable character are not inflicted upon the opposite party
under pretence of allowing amendment. It was held that amendment
which appears clearly to be an after thought to be disallowed.
8) The other decision placed reliance is of the Apex Court in
Peethani Suryanarayana V. Repaka Venkata Ramana Kishore
where it was held that Court holds power to allow such amendment,
provided the application is bonafide and does not cause injustice to
either side and does not affect the rights already accrued to the other
side. It was on facts in the suit for partition amendment of plaint
saying some typographical error is there as to subject matter that
requires correction when it causes no prejudice to the so called
pendentelite purchasers of suit land by correction of survey Nos.462
and 463 from what plaint originally described of Survey No.165, when
that Survey No.165 is re-assigned as 463 and the mentioning is to
correct the typographical mistake. For that conclusion referred
Sajjan Kumar V. Ram Kishan para-5 holding the amendment sought
is for the purpose of bringing to the record the real question in
controversy between the parties and refusal to permit the
amendment would create needless complications at the stage of
execution in the event of the appellant-plaintiff succeed in the suit.
In fact, the boundary description survey number or boundaries if
outcome of bonafide mistakes can be allowed if not come under
Sections 152 or 153 C.P.C atleast under Section 151 C.P.C to subserve
the ends of justice. In this regard, it was laid down way back in the
expression of this Court in Kalkonda Pandu Rangaiah V. Kalkonda
Krishnaih as follows:
As a result of the above discussion my conclusions on the
three points formulated above are as follows:- Where clerical
or arithmetical mistakes occur in copying the plaint schedules
from the documents anterior to the suit the proceedings in
the suit can always be corrected under Section 152 C.P.C. In
such cases even the documents on the basis of which the suit
was filed may be amended either in a suit under Section 31 of
the Specific Relief Act or in a proper case even by an
application under Section 152 C.P.C provided it is a case of
misdescription and not one of disputed identity. In such
cases, if Section 152 is invoked it would obviate a suit which
would ultimately bring the same result. In all cases, where
clerical or arithmetical errors creep-in in the plaint and as a
consequence in the decrees as well, they can be rectified at
any time even after a final decree. A case of such an
amendment petition under Section 152 C.P.C. filed in a
pending suit even after a preliminary decree is passed therein
is an a fortiori case.
9) The law succinctly laid down from the expressions is that the
requirement of satisfying the due diligence concept for the trial once
commenced and in particular for post trial amendment is a mandatory
requirement being a pre-requisite, besides the other considerations,
where the amendment is necessary to resolve the real controversy
and where does not cause grave prejudice or injustice to the other
side and where it does not alter the cause of action or inconsistent to
the existing material in the pleadings on record. It can be allowed
where the amendment is necessary to explain the material on record.
10) From this undisputedly the trial is at the fag end of both
suits clubbed together and the plaint schedule boundaries are
disputing by the defendants of the suit in the specific performance
suit O.S. No.585 of 2007 and the same is there also in the evidence on
plaintiffs side of O.S. No.417 of 2007 where the suit in O.S. No.585 of
2007 clubbed with for joint trial and the defendants in O.S. No.585 of
2007 let in evidence as D.Ws 1 and 2 and also on their side D.Ws 3, 4
and 5 examined and the plaintiff in O.S. No.585 of 2007 as D.W-1 in
the chief examination not explained the same. It is no doubt, the
contention of the revision petitioner who is the plaintiff in O.S.
No.585 of 2007 in seeking amendment of the two of the boundaries to
the plaint schedule supra is that it could not be noticed even at that
stage and it is only in the cross-examination page No.36, para No.2 it
was elicited and in page 26, Para No.3 of the written statement of the
defendants in O.S. No.585 of 2007, the defendants did not even
dispute the boundaries. It is in fact, the proposed amendment sought
for is not for Eastern and Western boundaries, but for North to change
as South and South to change as North and not even to introduce any
new names, but for saying the mistake occurred by inadvertence and
unnoticed. It is no doubt true in the so called agreement for sale of
which the suit for specific performance of O.S. No.585 of 2007
maintained, the sale agreement does not contain boundaries and it is
only in the plaint it is specified as part of S.No.295 admeasuring Ac.0-
20 guntas within the four boundaries and now sought for amendment
of the boundary name mentioned as North as South and South as
North. From this, there is nothing to show what grave prejudice being
caused to the defendants in O.S. No.585 of 2007 or plaintiffs in O.S.
No.417 of 2007 when they are disputing the very contract for sale in
favour of plaintiff in O.S. No.585 of 2007 and its enforceability and
not even admitting of sale is only within the boundaries and by change
of the Northern to Southern and Southern to Northern, it is
inconsistent to the stand already taken in the plaint pleadings or
causes thereby any grave prejudice to the opposite party. When such
is the case, the amendment when required to resolve the real
controversy and to avoid future complications in the event of success
in execution or the like. It is clearly stated that it could not be
noticed before pre-trial stage, that too when the defendants written
statement in O.S. No.585 of 2007 no way disputed the boundaries and
its correctness. Thus, it can be said that the plaintiff in O.S. No.585
of 2007 could not seek the amendment before commencement of trial
despite due diligence, as it is noticed from the evidence let in, in the
suits clubbed together after commencement of trial and when it is to
resolve the real controversy as per the plaintiff in O.S. No.585 of 2007
and when delay itself is not a ground to reject the amendment, the
trial Court ought to have allowed the amendment, when it no way
causes withdrawal of any inconsistent admission in the pleadings or
grave prejudice to other side or changes the cause of action or nature
of suit, but for the said delay to compensate. The lower Courts order
dismissing the amendment application now sought to be intervened in
the revision within its limited scope for saying is improper exercise of
jurisdiction vested and when it causes prejudice to the revision
petitioners/plaintiffs in O.S. No.585 of 2007, this Court has to
interfere to set aside the order impugned in the order vide Shalini
Shyam Shetty V. Rajendra Shankar Patil that was followed in
Sameer Suresh Gupta V. Rahul Kumar Agarwal .
11) Accordingly and in the result, the revision is allowed by
setting aside the dismissal order of amendment sought in I.A. No.1866
of 2014 in O.S. No.585 of 2007 by the trial Court by allowing the
amendment subject to payment of costs of Rs.5,000/- by the
Petitioner/Plaintiffs in O.S.No.585 of 2007 to the defendant in that
suit within 15 days from the date of receipt of this order and file
proof before the trial Court, failing which the order of the lower
Court holds good. There is no order as to costs in the revision.
12) Miscellaneous Petitions pending, if any, in this revision shall
stand closed.
________________________
Dr. B. SIVA SANKARA RAO, J
Date: -12-2014
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