All HC | Order upheld on application of test of due diligence for an application under Or. 6 R. 17 CPC

Allahabad High Court: Yogendra Kumar Srivastava, J. dismissed the revision petition on the ground that the revisionist was not able to show material error or irregularity in the order passed by the courts.

A revision petition was filed against the order of Additional District Judge where the amendment sought by the revisionist-defendant in the written statement was rejected.

Sanjay Maurya and Deepak Kumar Jaiswal, counsels for the revisionist submitted that under Order 6 Rule 17 of the Code of Civil Procedure, 1908 the court may at any stage of proceeding allow the amendment of the pleading which was rejected by the trial court without recording any finding to arrive at the conclusion that in spite of due diligence the defendant could not have sought the amendment before the commencement of the trial.

Counsel for the respondent submitted that in this case after framing of issues dates were fixed for evidence of the parties and amendment was sought by the defendant tenant only as a dilatory tactic so as to delay the proceedings.

The lower court while rejecting the amendment application had referred to the proviso in Order 6 Rule 17 of CPC in terms of which no application for amendment was to be allowed after the trial had commenced unless the court comes to the conclusion that in spite of the due diligence the parties could not have raised the matter before the commencement of trial. The reason assigned by the defendant-tenant in his application to support his prayer for the amendment was the engagement of a new counsel which was held by the court below to be insufficient. Reliance was placed upon the case of Revajeetu Builders and Developers v. Narayanaswami and Sons.

The Court discussed the “due diligence” which was added by the Amendment Act, 2002 and opined thatthe term “due diligence” has been specifically used so as to provide a test for determining whether to exercise the discretion in situations where amendment is being sought after the commencement of the trial.”

The Court held that “court below has come to the conclusion that the amendment which was being sought was not imperative for determining the real question in controversy between the parties, and also that the same was barred by the proviso to Order 6 Rule 17 CPC which curtails the discretion to allow amendment of pleadings after the trial has commenced, and introduces the “due diligence” test in terms whereof the burden is on the person seeking the amendment after commencement of trial to show that in spite of “due diligence” such an amendment could not have been sought earlier, and as such the order passed by the trial court cannot be faulted with”. Another judgment which was noted by the court was that of Mundri Lal v. Sushila Rani, (2007) 8 SCC 609 in which it was held that “There are very limited grounds on which there can be interference in exercise of jurisdiction under Section 25 of Provincial Small Cause Courts Act, 1887; they are, when (i) findings are perverse or (ii) based on no material or (iii) findings have been arrived at upon taking into consideration the inadmissible evidence or (iv) findings have been arrived at without consideration of relevant evidence.”

The Court thus held that the revisionist was not able to point out the material error or irregularity in the order passed by the courts below so as to warrant the interference in exercise of revisional jurisdiction under Section 25 of the Provisional Small Cause Court Act, 1887.  Thus, the revision petition was dismissed.[Hari Narayana v. Shanti Devi, 2019 SCC OnLine All 2380, decided on 28-05-2019]

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