# M/s J.A. Construction v. Sardar Kuldeep Singh & Ors

- **Citation:** (2020) 1 ILRA 1609
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-03
- **Case number:** Matters Under Article-227 No. 8624 of 2019
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-j-a-construction-v-sardar-kuldeep-singh-ors-45278
- **Pages:** 7

## Headnote

A. Civil Procedure Code, 1908 - Order 6
Rule 17 proviso - Amendment of Written
statement at the belated stage of appeal
- Rejected - Burden on the person, who
seeks amendment, after commencement
of the trial to show that in spite of "due
diligence" such an amendment could not
have been sought earlier.

Defendant sought amendment in his WS - at
the stage of appeal - Trial court held filing of
amendment application at the belated stage of
appeal was with a view to delay the
proceedings & accordingly rejected - Held -
Petitioner failed to discharge the burden that
inspite of due diligence , amendments could
not be sought during the pendency of the
proceedings at the stage of trial - Amendments
sought at the stage of appeal were not bona
fide and the same were only with a view to
delay the proceedings. (Para 17)

Matter Under Article 227 dismissed. (E-5)
List of cases cited: -

1.Chander Kanta Bansal VsRajinderSingh Anan
d (2008) 5 SCC 117
2.J. Samuel VsGattu Mahesh & Ors(2012) 2 SC
C 300

3.Revajeetu Builders and Developers Vs Naraya
naswami and Sons & Ors (2009) 10 SCC 84

4.M.RevannaVsAnjanamma & Ors(2019) 4 SCC
332

## Text

1610 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)1ILR 1609

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.12.2019

BEFORE
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Matters Under Article-227 No. 8624 of 2019
(Civil)

M/s J.A. Construction ...Petitioner
Versus
Sardar Kuldeep Singh & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pramod Kumar Jain, Sri Abu Bakht, Sri
Nitin Jain

Counsel for the Respondents:
Sri Shailendra

A. Civil Procedure Code, 1908 - Order 6
Rule 17 proviso - Amendment of Written
statement at the belated stage of appeal
- Rejected - Burden on the person, who
seeks amendment, after commencement
of the trial to show that in spite of "due
diligence" such an amendment could not
have been sought earlier.

Defendant sought amendment in his WS - at
the stage of appeal - Trial court held filing of
amendment application at the belated stage of
appeal was with a view to delay the
proceedings & accordingly rejected - Held -
Petitioner failed to discharge the burden that
inspite of due diligence , amendments could
not be sought during the pendency of the
proceedings at the stage of trial - Amendments
sought at the stage of appeal were not bona
fide and the same were only with a view to
delay the proceedings. (Para 17)

Matter Under Article 227 dismissed. (E-5)
List of cases cited: -

1.Chander Kanta Bansal VsRajinderSingh Anan
d (2008) 5 SCC 117
2.J. Samuel VsGattu Mahesh & Ors(2012) 2 SC
C 300

3.Revajeetu Builders and Developers Vs Naraya
naswami and Sons & Ors (2009) 10 SCC 84

4.M.RevannaVsAnjanamma & Ors(2019) 4 SCC
332

5. Vijay Hathising Shah & Anr. Vs Gitaben
Parshottamdas Mukhi & Ors(2019) 5 SCC 360

6. Madhaw Asharam Charitable Trust Hanuman
Mandir & Anr. Vs Shri Shamshul Khuda Khan
2019 (12) ADJ 41

7.Hari Narayan VsShanti Devi2019 (2) ARC 715

8. Shalini Shyam Shetty & Anr.Vs Rajendra Sha
nkar Patil (2010) 8 SCC 329

9. Radhey Shyam & Anr. Vs. Chhabi Nath & Ors
(2015) 5 SCC 423

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Abu Bakht, learned
counsel
for
the
petitioner
and
Sri
Shailendra, learned counsel appearing for
respondent nos.1 and 2.

2. The present petition has been filed
against the order dated 01.05.2018 passed by
the Additional District Judge, Court No.8,
Kanpur Nagar in Civil Appeal No.139 of 2016
rejecting the amendment application whereby
certain amendments had been sought by the
petitioner-defendant in his written statement.
The petitioner also seeks to assail the order
dated 17.09.2019 whereby another amendment
application (Application No.132Ga) again
seeking certain amendments in the written
statement filed by the petitioner-defendant has
also been rejected.

3. Contention of the learned counsel
for the petitioner is that the amendments in
1 All. M/s J.A. Construction Vs. Sardar Kuldeep Singh & Ors.
1611
question were necessitated due to the fact
that certain legal points came to the
knowledge of the counsel of the petitionerdefendant subsequently and since the said
points had not been mentioned in the
written statement they were necessary and
to be raised at the stage of appeal.

4. Per contra, learned counsel for the
respondent-plaintiffs
submits that the
original suit which had been filed in the
year 2008 had been decreed vide judgment
dated 29.05.2015 and
thereafter the
petitioner-defendant had preferred an
appeal in the year 2016 and as such the
amendments which are being sought in the
written statement at the stage of appeal are
only with a view to linger the proceedings
and the amendment applications have
rightly been rejected.

5. The order dated 01.05.2018
whereby the first amendment application
of the petitioner has been rejected takes
note of the fact that the amendments which
were sought were basically with a view to
raise a plea with regard to insufficiency of
court fee and that the trial court while
deciding the suit had framed a specific
issue as to whether the
suit was
undervalued and there was deficiency of
court fee and the said issue had been
decided by an order dated 14.10.2010
answering the same in the negative and
accordingly it was not necessary for the
petitioner to seek an amendment in his
written statement raising the issue at the
stage of appeal. The court below has
however held that the legal submissions on
the issue of valuation of the suit and the
court fee can be raised by the petitioner at
the stage of hearing of the appeal.

6. The order dated 17.09.2019
whereby
the
second
amendment
application moved by the petitioner has
been rejected takes notice of the fact that
an earlier amendment application filed by
the petitioner on 28.03.2017 wherein
similar amendments had been sought had
already been rejected by an order dated
01.05.2018. The court below has also
taken note of the fact that the suit had been
decreed on 25.05.2015 and during the
pendency of the suit no such amendment
had been sought by the petitionerdefendant and the filing of the amendment
application at the belated stage of appeal
was clearly with a view to delay the
proceedings and accordingly the same was
rejected and the matter was posted for
hearing.

7. The rival contentions which fall
for consideration relate to the scope of the
powers of the Court to allow amendment
of pleadings under Order VI Rule 17 of the
Civil Procedure Code, 19081.

8. The purpose and object of rules
relating to pleadings being to decide the
real controversy between the parties and
not to punish them for their negligence, the
provisions relating to the amendment of
pleadings are usually to be liberally
construed with a view to promoting the
ends of justice and not for defeating them,
and consequently the courts generally
allow all amendments that may be
necessary for determining the real question
in controversy between the parties.

9. The proviso to Rule 17 under
Order VI, as inserted by the Code of Civil
Procedure
(Amendment)
Act,
20022,
however, restricts and curtails the power
of the court to allow amendment of
pleadings by enacting that no application
for amendment is to be allowed after the
trial has commenced unless the court
1612 INDIAN LAW REPORTS ALLAHABAD SERIES
comes to the conclusion that in spite of
due diligence, the party could not have
raised
the
matter
before
the
commencement of the trial.

10. The proviso to Rule 17, as per the
Amendment Act, 2002, has introduced the
"due diligence" test, which requires that
the court must be satisfied that in spite of
"due diligence" the party could not
discover the ground pleaded in the
amendment. The 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
commencement of the trial.

11. The object of introducing the
proviso to Rule 17 was considered in the
case of Chander Kanta Bansal Vs.
Rajinder Singh Anand3, and it was held
as follows:-

"11. ...The proviso limits the
power to allow amendment after the
commencement
of
trial
but
grants
discretion to the court to allow amendment
if it feels that the party could not have
raised
the
matter
before
the
commencement of trial in spite of due
diligence. It is true that the power to allow
amendment should be liberally exercised.
The liberal principles which guide the
exercise of discretion in allowing the
amendment
are
that
multiplicity
of
proceedings should be avoided, that
amendments which do not totally alter the
character of an action should be granted,
while care should be taken to see that
injustice and prejudice of an irremediable
character are not inflicted upon the
opposite
party
under
pretence
of
amendment.

12. With a view to shorten the
litigation and speed up the trial of cases
Rule 17 was omitted by amending Act 46
of 1999. This rule had been on the statute
for ages and there was hardly a suit or
proceeding where this provision had not
been used. That was the reason it evoked
much controversy leading to protest all
over the country. Thereafter, the Rule was
restored in its original form by amending
Act 22 of 2002 with a rider in the shape of
the
proviso
limiting
the
power
of
amendment to some extent. The new
proviso lays down that no application for
amendment shall be allowed after the
commencement of trial, 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. But whether a
party has acted with due diligence or not
would
depend
upon
the
facts
and
circumstances of each case. This would, to
some extent, limit the scope of amendment
to pleadings, but would still vest enough
powers in courts to deal with the
unforeseen situations whenever they arise.

13. The entire object of the said
amendment is to stall filing of applications
for amending a pleading subsequent to the
commencement of trial, to avoid surprises
and the parties had sufficient knowledge of
the other's case. It also helps in checking
the delays in filing the applications. Once,
the trial commences on the known pleas, it
will be very difficult for any side to
reconcile. In spite of the same, an
exception is made in the newly inserted
proviso where it is shown that in spite of
due diligence, he could not raise a plea, it
is for the court to consider the same.
Therefore, it is not a complete bar nor
shuts out entertaining of any later
application. As stated earlier, the reason
1 All. M/s J.A. Construction Vs. Sardar Kuldeep Singh & Ors.
1613
for adding proviso is to curtail delay and
expedite hearing of cases.

x x x x x

15. As discussed above, though
first part of Rule 17 makes it clear that
amendment of pleadings is permitted at
any stage of the proceeding, the proviso
imposes certain restrictions. It makes it
clear that after the commencement of trial,
no application for amendment shall be
allowed. However, if it is established that
in spite of "due diligence" the party could
not have raised the matter before the
commencement of trial depending on the
circumstances, the court is free to order
such application.

16. The words "due diligence"
has not been defined in the Code.
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.

17. It is clear that unless the
party takes prompt steps, mere action
cannot be accepted and file a petition after
the commencement of trial...."

12. The provisions contained under
Order VI Rule 17 proviso as introduced in
the year 2002 again came up for
consideration in the case of J. Samuel Vs.
Gattu Mahesh & Ors.4 wherein the
principles
relating
to
allowing
amendments under Order VI Rule 17 were
reiterated and the object of the proviso and
the meaning and significance of "due
diligence"
of
the
parties
seeking
amendment
was
also
stated.
The
observations made in the judgment in this
regard as follows:-

"18. The primary aim of the
court is to try the case on its merits and
ensure that the rule of justice prevails. For
this the need is for the true facts of the
case to be placed before the court so that
the court has access to all the relevant
information in coming to its decision.
Therefore, at times it is required to permit
parties to amend their plaints. The court's
discretion to grant permission for a party
to amend his pleading lies on two
conditions, firstly, no injustice must be
done to the other side and secondly, the
amendment must be necessary for the
purpose of determining the real question in
controversy between the parties. However,
to balance the interests of the parties in
pursuit of doing justice, the proviso has
been added which clearly states 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."

19. 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.
1614 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

20. 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.

x x x x x

23. ...The entire object of the
amendment to Order VI Rule 17 as
introduced in 2002 is to stall filing of
application for amending a pleading
subsequent to the commencement of trial,
to avoid surprises and that the parties had
sufficient knowledge of other's case. It
also helps checking the delays in filing the
applications. (Vide Aniglase Yohannan v.
Ramlatha
(2005)
7
SCC
534,
Ajendraprasadji N. Pandey v. Swami
Keshavprakeshdasji N. (2006) 12 SCC 1,
Chander Kanta Bansal v. Rajinder Singh
Anand (2008) 5 SCC 117, Rajkumar
Gurawara v. S.K. Sarwagi and Co. (P) Ltd.
(2008)
14
SCC
364,
Vidyabai
v.
Padmalatha (2009) 2 SCC 409 : (2009) 1
SCC (Civ) 563 and Man Kaur v. Hartar
Singh Sangha (2010) 10 SCC 512 : (2010)
4 SCC (Civ) 239)."

13. Reference may also be had to the
judgment in the case of Revajeetu
Builders
and
Developers
Vs.
Narayanaswami and Sons & Ors.5
wherein some of the important factors
which may be kept in mind while dealing
with an application filed under Order VI
Rule 17 have been enumerated in the
following terms:-

"63. On critically analysing both
the English and Indian cases, some basic
principles emerge which ought to be taken
into consideration while allowing or
rejecting the application for amendment:

(1) whether the amendment
sought is imperative for proper and
effective adjudication of the case;

(2) whether the application for
amendment is bona fide or mala fide;

(3) the amendment should not
cause such prejudice to the other side
which cannot be compensated adequately
in terms of money;

(4) refusing amendment would
in fact lead to injustice or lead to multiple
litigation;

(5)
whether
the
proposed
amendment
constitutionally
or
fundamentally changes the nature and
character of the case; and

(6) as a general rule, the court
should decline amendments if a fresh suit
on the amended claims would be barred by
limitation on the date of application.

These are some of the important
factors which may be kept in mind while dealing
with application filed under Order 6 Rule 17.
These are only illustrative and not exhaustive.

64.
The
decision
on
an
application made under Order 6 Rule 17 is
a very serious judicial exercise and the
said exercise should never be undertaken
in a casual manner. We can conclude our
discussion
by
observing
that
while
deciding applications for amendments the
courts
must
not
refuse
bona
fide,
legitimate,
honest
and
necessary
amendments and should never permit mala
fide,
worthless
and/or
dishonest
amendments."
1 All. M/s J.A. Construction Vs. Sardar Kuldeep Singh & Ors.
1615

14. In a recent judgment in the case
of M. Revanna Vs. Anjanamma &
Ors.6, it has been held that after
commencement of trial amendment of
pleadings is not permissible except under
conditions stated in the proviso and the
burden is on the person seeking the
amendment after commencement of trial
to show "due diligence" on his part as
contemplated under the proviso. The
relevant observations in the judgment are
as follows:-

"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."

15. A similar view was taken in the
case of Vijay Hathising Shah & Anr. Vs.
Gitaben Parshottamdas Mukhi & Ors.7
wherein the order passed by the High
Court setting aside the order of the Trial Court
rejecting the amendment application was held
to be unsustainable and the order of the Trial
Court was restored. The observations made in
the judgment are as follows:-

"9. In our view, the trial court
was right in rejecting the application. This
we say for more than one reason. First, it
was wholly belated; second, Respondent
1-plaintiff
filed
the
application
for
amendment of the plaint when the trial in
the suit was almost over and the case was
fixed for final arguments; and third, the
suit could still be decided even without
there being any necessity to seek any
amendment in the plaint. In our view,
amendment in the plaint was not really
required for determination of the issues in
the suit."

16.

The
aforementioned
legal
position has been reiterated in recent
judgments of this Court in Madhaw
Asharam Charitable Trust Hanuman
Mandir & Anr. Vs. Shri Shamshul
Khuda Khan8 and Hari Narayan Vs.
Shanti Devi9.

17. In the case at hand the court
below upon due consideration of the facts
of the case has come to the conclusion that
the amendments which were being sought
to come at the stage of appeal were not
bona fide and the same were only with a
view to delay the proceedings.

18. No material has been placed on
record on behalf of the petitioner to
discharge the burden that in spite of due
diligence the amendments which are being
sought could not have been sought during
the pendency of the proceedings at the
stage
of
trial.
1616 INDIAN LAW REPORTS ALLAHABAD SERIES

19. This Court may also take notice of the
fact that the power of superintendence conferred
under Article 227, is to be exercised most
sparingly and within the parameters which have
been summarized in the case of Shalini Shyam
Shetty & Anr. Vs. Rajendra Shankar Patil10,
and also in the case of Radhey Shyam & Anr.
Vs. Chhabi Nath & Ors.11.

20. Counsel for the petitioner has not
been able to point out any material error or
illegality in the orders passed by the court
below so as to warrant interference in
exercise of power under Article 227 of the
Constitution of India.

21. The petition lacks merit and is
accordingly dismissed.
----------
(2020)1ILR 1615

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.01.2020

BEFORE
THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Application U/S 482/378/407 No. 3242 of 2009

Ravindra Kumar Yadav ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
S.K. Upadhyay

Counsel for the Opposite Party:
Govt. Advocate

A. Criminal Procedure Code, 1973 -
Section 190 (1) (a) Cr.P.C.- Cognizance -
The Court has to make Prima Facie
satisfaction on the allegations made in
the Complaint-

The correctness of the allegations made in the
Complaint and in the statements of the
witnesses u/s 200/202 Cr.Pc can only be
adjudged on the basis of evidence led during
the trial. At the stage of taking cognizance the
Magistrate has to see only that a prima facie
case is made out on the basis of the Complaint.
( Para 10)

B. Criminal Procedure Code, 1973 -
Section 190 (1) (a) Cr.P.C- Defence of the
accused- Involvement of the person and
not of his innocence or any version in
defence of the accused is not to be seen.

At the stage of cognizance, court is concerned
with the involvement of the person and not of
his innocence, therefore any version in defence
of the accused is not to be seen and the same
has to be adjudicated by the magistrate during
the course of the trial. ( Para 12)

C.Criminal Procedure Code, 1973 - Section
482 - Scope-The High Court is not to
appreciate and analyse factual aspect of
case because the same is a question of
evidence before the trial Court.

What is necessary is to see whether an error is
committed by the Magistrate while taking
cognizance of the offence on the basis of facts
alleged and materials placed before it and the
Court cannot look into or appreciate evidence
under Section 482 Cr.P.C. ( Para 10, 13)

Exercising the extraordinary power of the Court
conferred under Section 482 Cr.P.C., the
applicant directed to appear before the Court
concerned within three weeks from the date
certified copy is issued, alongwith his counsel
and the learned Court of Magistrate concerned
is directed to record his appearance through
counsel, without taking him into custody
subject to his producing proper bail bonds and
sureties to the satisfaction of the Court
concerned,
on
the
same
day
of
the
appearance. ( Para 19)

Criminal Application disposed of.(E-3)

Case law/ Judgements relied upon:-

1. Mohd. Allauddin Khan Vs. St. of Bih.& ors,
AIR 2019 SC 1910