# Dr. Amitabh Kumar Gupta Revisionist v. Awadh Bihari Nigam

- **Citation:** (2023) 7 ILRA 892
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-15
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-amitabh-kumar-gupta-revisionist-v-awadh-bihari-nigam-50654
- **Pages:** 5

## Headnote

Civil Law - The Code of Civil Procedure,
1908 - Order 6 Rule 17 - Amendment of
pleadings after the trial has commenced -
Due
diligence
-
If
an
amendment
application is filed at the stage of final
hearing,
then
while
allowing
the
application, it is necessary to examine
whether due diligence was exercised by
the applicant. Putting new facts on record
due
to
engagement/change
of
new
counsel, fault on the part of counsel or
any other reason attributed to counsel
cannot be ground for filing of amendment
application after commencement of trial.
In the instant case, at the time of the final
argument, an amendment application was
filed under Order VI Rule 17 of CPC solely
on the ground of engagement of a new
counsel, who discovered that certain
relevant facts had not been taken on
account of mistake on the part of the
7 All. Dr. Amitabh Kumar Gupta Vs. Awadh Bihari Nigam
893
earlier counsel. However, there was no
explanation regarding the exercise of due
diligence. SCC Court, without considering
the requirement of due diligence on the
part
of
the
plaintiff-opposite
party,
allowed
the
amendment
application.
Impugned order quashed. (Para 11, 13,
15)
Allowed. (E-5)
List of Cases cited:

## Text

892 INDIAN LAW REPORTS ALLAHABAD SERIES
the finding of the Tribunal, in exercise of
revision jurisdiction of the Court.

82. As to the alternate submission
advanced by learned Senior Counsel for the
assessee, that the value of goods has to be
seen on the date when the goods may have
been actually incorporated in a 'works
contract', it is neither practical nor it
otherwise merits acceptance. Construction
activity that continues on a day-to-day
basis and experiences price fluctuations
everyday, may never be subjected to such
an impractical exercise of computation as
may lead to endless complications and
disputes. If accepted, it would be to compel
the authorities to monitor the day-to-day
price of raw materials used in construction
and would also imply that the assessee
would have prove - to what extent goods
may have been incorporated to a 'works
contract', each day. Therefore, as a method,
if the value of the goods applied to a
'works contract', is taken with reference to
the total price, there appears no infraction
of the law. Otherwise, Rule 9 enables the
assessee to seek all appropriate allowable
deductions. Thus, on this issue as well, the
matter does not call for any interference.

83. Suffice to state, if the assessee had
desired to claim more deduction, then it
ought to have maintained its books in
accordance with Rule 9 of the Rules. The
assessee cannot claim those deductions in
absence of books of accounts, to justify the
same. At present, the issue is not justiciable
by this Court any further, in exercise of
revisional jurisdiction. Insofar as the findings
recorded by the Tribunal do not appear to be
perverse or unfounded, no interference is
warranted on that count, either.

84. In view of the above, the first
question of law is answered in the negative
and the second question of law is answered
in the affirmative i.e. both questions are
answered in favour of revenue and against
the assessee.

85. Present revision fails and is
dismissed. No order as to costs.
----------
(2023) 7 ILRA 892
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

S.C.C. Revision no. 58 of 2023

Dr. Amitabh Kumar Gupta ...Revisionist
Versus
Awadh Bihari Nigam ...Respondent

Counsel for the Revisionist:
Sri Manish Tandon, Sri Mohd. Naushad Siddiqui,
Sri Narendra Mohan

Counsel for the Respondent:
Sri J.P. Singh

Civil Law - The Code of Civil Procedure,
1908 - Order 6 Rule 17 - Amendment of
pleadings after the trial has commenced -
Due
diligence
-
If
an
amendment
application is filed at the stage of final
hearing,
then
while
allowing
the
application, it is necessary to examine
whether due diligence was exercised by
the applicant. Putting new facts on record
due
to
engagement/change
of
new
counsel, fault on the part of counsel or
any other reason attributed to counsel
cannot be ground for filing of amendment
application after commencement of trial.
In the instant case, at the time of the final
argument, an amendment application was
filed under Order VI Rule 17 of CPC solely
on the ground of engagement of a new
counsel, who discovered that certain
relevant facts had not been taken on
account of mistake on the part of the
7 All. Dr. Amitabh Kumar Gupta Vs. Awadh Bihari Nigam
893
earlier counsel. However, there was no
explanation regarding the exercise of due
diligence. SCC Court, without considering
the requirement of due diligence on the
part
of
the
plaintiff-opposite
party,
allowed
the
amendment
application.
Impugned order quashed. (Para 11, 13,
15)
Allowed. (E-5)
List of Cases cited:
1. Hari Shanker & ors. Vs Bhagwati Prasad
Mishra 2014 (0) Supreme (All) 3127
2. Shri Firoz Uddin & ors. Vs Shri Anwar Uddin,
passed in Matters Under Article 227 No. 5213 of
2013.
(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Mr. Narendra Mohan, Advocate has
filed Vakalatnama on behalf of opposite
party, which is taken on record.

2. Heard Sri Manish Tandon, leaned
counsel for the revisionist and Sri Narendra
Mohan, learned counsel for the opposite
party.

3. Present revision has been filed for
challenging the order dated 27.3.2023
passed by the Additional District Judge,
Court No.13, Kanpur Nagar in S.C.C. Suit
No. 44 of 2017.

4. Since only legal question is
involved, therefore, with the consent of the
parties, without inviting for affidavits, the
matter is being decided at the admission
stage itself.

5. Learned counsel for the revisionist
submitted that earlier plaintiff-opposite
party has instituted the SCC Suit No. 44 of
2017 upon which written submission has
been
filed.
Thereafter,
point
of
determination has also been framed. He
next submitted that both the parties i.e.
plaintiff and defendant have filed their
witnesses through affidavit and case is
fixed for final hearing. At the time of final
argument, amendment application was filed
under Order VI Rule 17 of CPC read with
151 IPC only on the ground of change of
new counsel and after engagement of new
counsel, it was found that certain relevant
facts was not taken into consideration. He
also submitted that since beginning, it is the
case of respondent-plaintiff that provision
of U.P. Act No. 13 of 1972 shall not be
applicable as rent of building in question is
more
than
2,000/-.
Now
on
facts,
respondent-plaintiff is coming to the fact
that
building
is
newly
constructed,
therefore, U.P. Act No.13 of 1972 would
not be applicable. He firmly submitted that
it is pure question of fact and plaintiff
respondent has full knowledge about the
same since the date of filing of suit,
therefore, at the stage of final argument
without explanation of due diligence, such
amendment
application
may
not
be
allowed. He further submitted that ground
so taken about the change of new counsel is
not acceptable, therefore, order is bad and
liable to be set aside. In support of his
contention, he has placed reliance upon the
judgment of this Court in the matter of
Hari Shanker and 5 others vs. Bhagwati
Prasad Mishra reported in 2014 (0)
Supreme (All) 3127 and Shri Firoz Uddin
and 4 others vs. Shri Anwar Uddin passed
in Matters Under Article 227 No. 5213 of
2013 decided on 8.5.2023.

6. Mr. Krishna Mohan, learned
counsel for the opposite party submitted as
earlier counsel has not been pointed out the
relevant fact only after engagement of new
894 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel, he found such relevant facts,
therefore,
he
has
filed
amendment
application at this stage, therefore, it cannot
be dismissed on the ground of due
diligence.

7. I have considered the rival
submissions advanced by the learned
counsel for the parties and perused the
Order 6 Rule 17 of CPC as well as
impugned order. In the application filed
under Order 6 Rule 17 of CPC, the only
ground taken is that after engagement of
new counsel, he has pointed out certain
relevant facts, which was not taken into
consideration except this nothing has been
stated in the amendment application.

8. To appreciate the controversy,
Order VI Rule 17 of CPC is being quoted
hereinbelow;

"17. Amendment of pleadings.-The
Court may at any stage of the proceedings
allow either party to alter or amend his
pleading 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."

9. Order VI Rule 17 of CPC clearly
provides that in case of amendment after
commencement of trial, due diligence is
required to be seen, but in the present case
except the change of counsel, nothing has
been stated. About the change of counsel or
fault on the part of counsel has also been
considered by this Court in the matter of
Hari Shanker (Supra). Relevant paragraph
of the same is quoted hereinbelow:-

"14. Supreme Court again in J.
Samuel v. Gattu Mahesh, (2012) 2 SCC
300, held that due diligence is the idea that
reasonable
investigation
is
necessary
before certain kinds of relief are requested.
Duly diligent efforts are a requirement for a
party seeking to use the adjudicatory
mechanism to attain an anticipated relief.
An advocate representing someone 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 in
situations of requested amendment after the
commencement of trial. A party requesting
a relief stemming out of a claim is required
to exercise due diligence and it is a
requirement which cannot be dispensed
with. The term "due diligence" determines
the
scope
of a
party's
constructive
knowledge, claim and is very critical to the
outcome of the suit. In the given facts, there
is a clear lack of "due diligen not search
out the fact, which is to be amended in
written statement. Therefore, the condition
of due diligence could not be satisfied. Law
is very ce" and the mistake committed
certainly does not come within the preview
of a typographical error. Similar view was
taken in Vidyabai Vs. Padma Latha, (2009)
2 SCC 409, Sushil Kumar Jain Vs. Manoj
Kumar, (2009) 14 SCC 38 and Abdul
Rehman Vs. Mohd. Ruldu, (2012) 11 SCC
341.

15. The written statement was drafted
by an advocate after reading the plaint.
After legal advice, it cannot be said that in
exercise of "due diligence" the fact sought
to be brought in the pleading by way of
7 All. Dr. Amitabh Kumar Gupta Vs. Awadh Bihari Nigam
895
amendment was not in the knowledge of the
defendant. A distinction has to be drawn
between 'due diligence' and 'negligence'.
The case of the defendants falls in the
category of 'negligence' and not 'due
diligence'. Trial Court rightly rejected the
amendment application, as Proviso to
Order VI Rule 17 C.P.C., now castes a
rider on the power of the Court in allowing
amendment application."

10. Again the similar issue was
considered by this Court in the matter of
Shri
Firoz
Uddin
(supra).
Relevant
paragraph of the said judgment is quoted
hereinbelow:-

"20. So far as present case is
concerned, there is no dispute on the point
that except the engagement of new counsel,
nothing has been stated in amendment
application even after sincere efforts, they
could not search out the fact, which is to be
amended in written statement. Therefore,
the condition of due diligence could not be
satisfied. Law is very much settled that
change of counsel cannot be a ground for
filing
amendment.
Therefore,
no
interference is required in the impugned
order dated 11.04.2023."

11. This Court is of the firm view that
putting new facts on record due to
engagement/change of new counsel, fault
on the part of counsel or any other reason
attributed to counsel cannot be ground for
filing of amendment application and allow
the
same,
which
was
filed
after
commencement of trial. In fact, in light of
Order VI Rule 17 of CPC, parameters of
due diligence cannot be met out by making
allegation on earlier counsel and giving
credit to new counsel to search out the
certain new facts during the preparation of
the case. Therefore, any such amendment
application placed upon the efforts or
mistake on the part of counsel cannot be
entertained and allowed.

12. The issue of due diligence is
necessary part, which is required to be
considered by the Court. Same was very
well considered by this Court in the matter
of Shri Firoz Uddin (Supra). Relevant
paragraph of the said judgment is quoted
hereinbelow:-

"18. From the perusal of Order VI
Rule 17 CPC, it is apparently clear that
there is no discrimination for filing
amendment application either for plaint or
written statement and proviso of due
diligence is very much applicable in both
the
cases
amendment
is
filed
after
commencement of trial. In fact, it is
beneficial legislation enabling the parties
to bring the some relevant facts on record,
if it was not available at the time of filing of
plaint or written statement even after
commencement of trial. Therefore, a
condition of due diligence has also been
made, which has to be complied with,
otherwise this provision may be misused to
delay the proceeding. Therefore, it would
be equally applicable for plaint and written
statement.

19. So far as judgements referred
herein above are concerned, those are also
of the same view. There is no doubt that
about the facts mentioned in amendment
application, Court should have been more
liberal while considering the amendment
application in written statement, but at the
same time Court cannot ignore the proviso
of due diligence otherwise provision would
have been misused. Therefore, Courts were
conscious while interpreting the provision
of Order VI Rule 17 CPC and no liberty is
given to either of the parties to skip away
with the condition of due diligence. Courts
896 INDIAN LAW REPORTS ALLAHABAD SERIES
have taken a categorical view that either it
is a case of amendment in plaint or written
statement, it is necessary to fulfill the
requirement of due diligence as provided in
Order VI Rule 17 CPC."

13. So far as due diligence as referred
in Order VI Rule 17 of CPC is concerned, it
is necessary requirement while allowing the
amendment
application
after
commencement of trial. In the present case,
there is no dispute on the point that
amendment application was filed at the
stage of final hearing, therefore, while
allowing the application, it is necessary
requirement to see as to whether due
diligence was made by the applicant for the
fact, which is brought on record by filing
amendment application and failure of that,
amendment application cannot be allowed.
In the impugned order, SCC Court has not
considered this fact that only ground taken
for filling amendment application is
mistake on the part of earlier counsel
without considering the requirement of
due diligence on the part of plaintiffopposite party. This is also mandate of this
Court in the matter of Shri Firoz Uddin
(Supra).

14. In the present case, nothing has
been stated about any due deligence made
by the plaintiff-opposite party to bring the
facts on record except the engagement of
new counsel, who has searched out the new
facts.

15. Therefore, under such facts and
circumstances as well as law laid down by
this Court, impugned order dated 27.3.2023
passed by learned Additional District
Judge, Court No.13, Kanpur Nagar is
hereby quashed and revision is allowed. No
order as to costs.
----------
(2023) 7 ILRA 896
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Writ-C No. 40161 of 2022
Connected With
Writ-C No.12406 of 2023
and
Writ-C No.4834 of 2022

Uday Pratap Singh & Ors. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ved Prakash Shukla, Sri Shailendra
Kumar Singh

Counsel for the Respondents:
C.S.C., Sri Madan Mohan, Sri Vaibhav
Tripathi
A. Pharmacy Act, 1948 - AICTE Act, 1987 -
Pharmacy Act, being a special legislation
governing the field of pharmacy, shall
prevail over any other general law for the
purpose of registering candidates as
pharmacists in the State Register and the
Central Register. (Para 27)
B. Pharmacy Act, 1948, Section 12 -
Approved Courses of Study - Any degree
obtained by a student that has not been
approved by the Pharmacy Council of
India, in terms of Section 12 of the
Pharmacy Act, would not entitle them to
registration
in
the
State
Register
maintained under Section 31 of the
Pharmacy
Act.
Singhania
University,
though recognized u/s 2(f) of the UGC
Act,
1956,
is
required
to
obtain
approval/recognition
for
awarding
diplomas in pharmacy u/s 12 of the Act,
1948, from the Pharmacy Council of India,