1. Heard.
2. Rule. Rule made returnable forthwith. The petition is heard finally with the consent of the learned counsel for the parties.
3. This writ petition is filed as the learned Appellate Court has rejected the application filed by the petitioners in Appeal to amend the written statement in Civil Suit. The respondent has filed Civil Suit No.105 of 2006. Rights of parties became final. The decree holder in said suit did not file final decree proceedings before trial court and therefore preliminary decree was not culminated into actual and physical division of the suit property and petitioner continued to be in possession. Though respondent was aware about reduction of the share of petitioner from 0.56 HR to 0.24 HR filed suit for specific performance of contract to execute the sale deed in his favour for 0.48 HR of the suit land.
4. The petitioner filed the appeal against the above said judgment and decree passed in RCS No.12 of 2012 before District Judge, Bhandara. It was admitted for final hearing and execution was stayed. While, preparing for final argument it has come to the knowledge of the counsel that few facts have been inadvertently left out to plead and other material facts, which ought to have been explained in detail, have been concisely stated without material particulars. The petitioner therefore filed the application for amendment in written statement at Exh.22 before the Trial Court and also to amend the memo of appeal consequently.
5. The petitioner has stated that without any reply or argument by respondent, the Court of Principal District Judge Bhandara rejected the amendment application on the ground that it is filed at belated stage. Therefore, the petitioner has filed this writ petition.
6. The learned counsel appearing for the petitioner has stated that it is settled preposition of law that delay is not a ground to reject the amendment application. On the contrary, in the reported judgment 2017 (5) Mh.L.J. 195 the Hon’ble Apex Court, ruled that parties are permitted to amend their pleadings at any stage not only during pendency of trial but also at first appeal and second appellate stage. The first appeal is final fact finding Court and therefore the parties for any irrelevant cause can not be precluded from introducing their own pleading and facts. The amendment application should have been therefore graciously allowed.
7. The respondent appeared and opposed the application stating that the agreement is dated 05.06.2010. The said agreement was restricted to 0.48 HR. The petitioner agreed to execute sale deed of 0.48 HR. The agreement was corrected by parties on 16.12.2012. There was no novation of contract nor there was any material modification of the agreement. The petitioner received Rs.10,000/- from the respondent on the said date. The respondent paid Rs.2000/- to the petitioner who placed the respondent in possession of the suit property. Thus, this is not even novation of contract in any case but in addition to the first agreement. Thus, the first agreement stood as it is. The second agreement as alleged is not at all agreement of novation but it is mere correction which was necessitated because of judicial pronouncement. The third alleged agreement is not again a new agreement. It is dated 22/08/2010 as by said agreement, the petitioner agreed to extend the time required for executing the sale deed. It is not novation of contract at all.
8. These facts were placed on record by the respondent in his plaint which is dated 02/11/2011. Thus, the petitioner/defendant had knowledge of these facts when the copy of the plaint was served upon them. The learned Trial Court framed the issues after the petitioner filed her written statement. In fact, the petitioner in her written statement admitted that there was some mistake in the initial agreement to the extent of area of the land to be sold. It is further admitted by her that said mistake was corrected. The said written statement was filed by the petitioner on 07/02/2012. The parties with these pleading went to trial. Evidence was recorded. The parties lead evidence and cross examined on the basis of these pleadings. The respondent/plaintiff was directed to deposit the balance consideration in the Court and the petitioner was directed to execute the sale deed of the suit property in his favour. The petitioner was restrained from creating any third party interest in the suit property by decree of perpetual injunction.
9. The respondent has further stated that the petitioner challenged the said decree in appeal RCA No.14/2017. During the pendency of said appeal, the petitioner has filed application for amendment of her written statement on 13.07.2018. It is submitted that the said amendment was barred under the proviso to Order 6 rule 17 of the Civil Procedure Code. The petitioner has failed miserably to show that in spite of due diligence, she could not take the plea in the written statement at the time of trial of the suit. There is no whisper or the explanation as to why such plea was not raised or why it could not be raised during trial. Thus the amendment application was not liable to be considered on this aspect only.
10. The amendment of pleadings is not permissible once the trial begins unless it is shown inspite of due diligence, such amendment could not be incorporated. The petitioner in fact has admitted the case of the respondent in the plaint. Thus, the petitioner cannot be allowed to take a plea which will take away the admission. The petitioners have no case on merits. Hence prayed to dismiss the writ petition.
11. In appeal the petitioner has filed the application for amendment of written statement as while preparing for final argument the learned counsel came to know that some facts are remained to be pleaded in written statement. Though the first para of Order 6 rule 17 makes it clear that amendment of pleadings is permitted at any stage of proceeding the proviso imposes certain restriction. It makes clear that after the commencement of the trial, no application for amendment shall be allowed. However, if it is established that in spite of the due diligence, the party would not have raise the matter before the commencement of trial it may not have on the circumstances the court is free to allow such application.
12. Nothing is brought on record to show that why it was not brought on record at earlier stage. It therefore needs to be seen whether, the requirement of due diligence as contained in proviso to order 6 Rule 17 is satisfied. As per the decision of Civil Suit No.105 of 2006 the petitioner No.1 became the owner of 0.48 HR land. Already the petitioner had entered into an agreement with the respondent to sale 0.56 HR of land in the same Khasra Number. The petitioner has received Rs.1,00,000/- as earnest money. The agreement is dated 05.06.2021, thus, after the decision of the civil suit the parties agreed that the petitioner was owner to the extent of 0.48 HR only. This fact was told to the respondent by the petitioner only. Thus, the parties prayed to correct the said agreement dated 05.06.2010, thus the said agreement was restricted to 0.48 HR. The Petitioner agreed to execute the sale deed of 0.48 HR. The agreement was corrected by the parties on 16.12.2012. The petitioner received Rs.10,000/- from the respondent on the said date. The first agreement stood as it is, the second agreement was alleged is not at all agreement of novation, but is mere correction which was necessitated because of judicial pronouncement. All these facts were placed on record by the respondent in his plaint. Thus, the petitioner had knowledge of these facts when the copy of the plaint was served upon them. The issues were framed after considering the written statement. The petitioner has admitted in his written statement that there was some mistake in the initial agreement to the extent of area of land to be sold. The respondent has further admitted that said mistake was corrected. After decreeing the suit the respondent was directed to deposit the balance consideration in the court and petitioner was directed to execute the sale deed and the suit property in his favour. The petitioner was restricted from creating any third party interest in the suit property. During the pendency of the appeal RCA No.14 of 2017 the petitioner filed the application for amendment. From the above said facts it does not disclose that in spite of due diligence she could not brought it on record. This court has in the case of Anil Ramsingh Bilawr and ors Vs. Anita Gopal Kadam and anr reported in 2022(2)Mh.L.J. 345 in paragraph No.13 observed as under:-
"13. “The issue of 'due diligence', cannot be encapsulated into a straitjacketed formula, but has to be considered on a case to case basis. However some factors can definitely be considered, one side of the spectrum being:
(a) Where the record indicates absence of knowledge regarding the proposed amendment which could not otherwise have been obtained by a prudent person.
(b) where the information was within the knowledge of the other side, who inspite of a duty to disclose, deliberately, conceals the same.
the other end of the spectrum being:
(c) where the information was disclosed, but was not taken note of by filing an application within reasonable time.
the above are some circumstances which would be pointers, for application of the 'due diligence' position.
There can be incidences where the issue of 'due diligence' could be outweighed by the need to avoid multiplicity of litigation; the amendment being necessary to decide the real controversy between the parties; the injustice or prejudice which may be caused to the party seeking amendment upon its refusal and other factors. Thus the grant or refusal of an amendment, does not depend on any singular factor but on an amalgam of several, as indicated above, each having its own weight and importance. The dictum as laid down in M. Revanna/Anjanamma 2020(1) Mh.L.J (S.C)143 =(2019) 4 SCC 332, [LQ/SC/2019/277] where the application for amendment of the plaint was rejected as being belated, not bonafide and so also having the effect of changing the character of the suit being being relevant is quoted as under:
"7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from being 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. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money."
(emphasis supplied)
The petitioner has not given the reason for not pleading said facts at the relevant time and approach is very casual. Due diligence is not shown. The Hon’ble Apex Court has discussed about ‘due diligence’ in the case C hande r Kanta Bansal Vs. Rajinder Sing Anand reported in (2008) 5 SCC 117 [LQ/SC/2008/653] .
"B: The words "due diligence" has not been defined in the Code of Civil Procedure. According to Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (18th Edition), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13-A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs."
13. The petitioner in this case was aware about the fact, it is admitted by him about the portion of land he sold now after decree he can not take different stand. Though he was aware he has not corrected it during trial in absence of due diligence, as referred above, the amendment can not be granted.
14. The Hon’ble Apex Court in the case of Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited and anr. reported in 2023 (2) ALL MR 333(S.C.) has observed in paragraph No.70(iii)(b) as under:
“(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and"
15. In the case in hand, the petitioner in her written statement has admitted about the fact portion for which she has agreed for and no w by way of amendment admission would withdraw.
16. Considering the legal position, and as the petitioner failed to take any due diligence, the trial court has rightly rejected the application. There is no necessity of interference at the hands of this court. The writ petition stands dismissed.
17. Rule is discharged.
