# Ramesh Duggal @ Pappu v. Pt. Ram Shanker Mishra Trust Chief Office, Kanpur Nagar

- **Citation:** (2023) 5 ILRA 255
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-05
- **Case number:** Matters Under Article 227 No. 2658 of 2023
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-duggal-pappu-v-pt-ram-shanker-mishra-trust-chief-office-kanpur-nagar-50196
- **Pages:** 14

## Headnote

A. Civil Law - Amendment of pleadings -
Ejectment and Recovery of damages -
Provincial Small Cause Courts Act, 1887 -
Sections
26
&
25
-
Code
of
Civil
Procedure,1908 - Order VI Rule 17 - Due
diligence is a very important factor while
allowing amendment application u/Order
VI Rule 17 of CPC and applicant has to
prove that he has made all possible
efforts, but even after that, he could not
know about the documents or facts which
are
most
relevant
to
decide
the
controversy. In case documents or facts
are available or within the knowledge of
petitioner, at any stage, if any application
is filed, same cannot be allowed as it
would not fulfil the parameter of due
diligence as provided in Order VI Rule 17
of CPC. (Para 23)

The conduct of petitioner-defendant clearly
shows that trust deed was very well present
from the date of filing of written statement
and as per admission of petitioner-defendant,
it was in his knowledge from 07.12.2017, but
he has never filed any application u/Order VI
Rule 17 of CPC, which shows that there is
absolute lack of due diligence. In fact
contrary to that, having knowledge of each
and every facts, petitioner-defendant has
never raised before the court by the way of
written statement or application u/Order VI
Rule 17 of CPC and once the suit has been
decided against him, with an ulterior
motive, an application has been filed.
Therefore, this Court is of the view that
such amendment application doesn't fulfill
the condition of Order VI Rule 17 of CPC as
it is having absolute lack of due diligence
rather it is a case of negligence as
petitioner-defendant was sleeping over the
matter
for
a
long
time
without
any
explanation. (Para 17, 18)
256 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Right accrued based on admission of
facts cannot be taken back by the way of
allowing
amendment
application
withdrawing the admission earlier given.

In the present case, no doubt, the suit is
allowed based upon the admission of petitioner-
defendant about tenant landlord relationship
with
respondent-plaintiff
and
once
such
amendment application is allowed at a very
belated stage without any proper reason, would
certainly
deprive
the
rights
of
plaintiffrespondent, which accrued in his favour vide
judgment
and
order
dated
08.07.2022.
Therefore, on this issue too, such amendment
application cannot be allowed. (Para 27)

C. Words and Phrases - 'Due diligence' -
The words "due diligence" have not been
defined in the Code. According to Oxford
Dictionary (Edn. 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 Edn.), "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 Edn. 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. (Para 21)

Present case is the best example of negligence
and not of due diligence and also withdrawal of
right accrued to the petitioner in light of
admission made in written statement, which
cannot be permitted. Therefore, no case is
made out to interfere with the impugned order
dated 10.02.2023 passed by District Judge,
Kanpur Nagar. (Para 28)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

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5 All. Ramesh Duggal @ Pappu Vs. Pt. Ram Shanker Mishra Trust Chief Office, Kanpur Nagar 255
look into the factor of urgent interim relief
in terms of relief sought in plaint or in the
application for temporary injunction.

18. In view of discussion made
hereinabove,
the
question
framed
is
answered that contemplation of urgent
interim relief for the purpose of Section 12
A of the Commercial Courts Act 2015 is to
be considered by the court concerned only
as per averments made in plaint or
temporary injunction application.

19. Upon applicability of the aforesaid
judgments and discussions, in the present
facts and circumstances although the suit
has been filed after almost one and a half
months of the termination of contract but
since it indicates urgent interim relief
particularly in view of clause 6.13 being
invoked against plaintiff, in the considered
opinion of this Court, the plaint as such
contemplates urgent interim relief and
therefore mandatory provisions pertaining
to pre institution mediation have been
rightly waived by the Commercial Court.
As such, no exception can be taken to the
order impugned.

20. Resultantly, the petition being
devoid of merit is dismissed. Parties to
bear their own cost.
----------
(2023) 5 ILRA 255
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.05.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 2658 of 2023
(CIVIL)

Ramesh Duggal @ Pappu ...Petitioner
Versus
Pt. Ram Shanker Mishra Trust Chief Office,
Kanpur Nagar ...Respondent

Counsel for the Petitioner:
Sri Shesh Kumar Srivastava

Counsel for the Respondents:
Sri Shantanu Srivastava

A. Civil Law - Amendment of pleadings -
Ejectment and Recovery of damages -
Provincial Small Cause Courts Act, 1887 -
Sections
26
&
25
-
Code
of
Civil
Procedure,1908 - Order VI Rule 17 - Due
diligence is a very important factor while
allowing amendment application u/Order
VI Rule 17 of CPC and applicant has to
prove that he has made all possible
efforts, but even after that, he could not
know about the documents or facts which
are
most
relevant
to
decide
the
controversy. In case documents or facts
are available or within the knowledge of
petitioner, at any stage, if any application
is filed, same cannot be allowed as it
would not fulfil the parameter of due
diligence as provided in Order VI Rule 17
of CPC. (Para 23)

The conduct of petitioner-defendant clearly
shows that trust deed was very well present
from the date of filing of written statement
and as per admission of petitioner-defendant,
it was in his knowledge from 07.12.2017, but
he has never filed any application u/Order VI
Rule 17 of CPC, which shows that there is
absolute lack of due diligence. In fact
contrary to that, having knowledge of each
and every facts, petitioner-defendant has
never raised before the court by the way of
written statement or application u/Order VI
Rule 17 of CPC and once the suit has been
decided against him, with an ulterior
motive, an application has been filed.
Therefore, this Court is of the view that
such amendment application doesn't fulfill
the condition of Order VI Rule 17 of CPC as
it is having absolute lack of due diligence
rather it is a case of negligence as
petitioner-defendant was sleeping over the
matter
for
a
long
time
without
any
explanation. (Para 17, 18)
256 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Right accrued based on admission of
facts cannot be taken back by the way of
allowing
amendment
application
withdrawing the admission earlier given.

In the present case, no doubt, the suit is
allowed based upon the admission of petitioner-
defendant about tenant landlord relationship
with
respondent-plaintiff
and
once
such
amendment application is allowed at a very
belated stage without any proper reason, would
certainly
deprive
the
rights
of
plaintiffrespondent, which accrued in his favour vide
judgment
and
order
dated
08.07.2022.
Therefore, on this issue too, such amendment
application cannot be allowed. (Para 27)

C. Words and Phrases - 'Due diligence' -
The words "due diligence" have not been
defined in the Code. According to Oxford
Dictionary (Edn. 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 Edn.), "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 Edn. 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. (Para 21)

Present case is the best example of negligence
and not of due diligence and also withdrawal of
right accrued to the petitioner in light of
admission made in written statement, which
cannot be permitted. Therefore, no case is
made out to interfere with the impugned order
dated 10.02.2023 passed by District Judge,
Kanpur Nagar. (Para 28)

Writ petition dismissed. (E-4)

Precedent followed:
1. Hari Shanker & ors. Vs Bhagwati Prasad
Mishra, 2014 0 Supreme (All) 3127, decided on
30.10.2014 (Para 9)

2. Hari Narayan Vs Shanti Devi, 2019 SCC
OnLine All 2380, decided on 28.05.2019 (Para
9)

3. Raj Kumar Mulani Vs Ramesh Kumar
Hemrajani, 2019 0 Supreme (All) 1604, decided
on 1909.2019 (Para 10)

Precedent distinguished:

1. Surendra Kumar Sharma Vs Makhan Singh,
2009 (3) ARC 427 (Para 8)

2. B.K.N. Pillai Vs P. Pillai, Civil Appeal No. 722223 of 1999 (arising out of S.L.P. (Civil) No.
14540-14541 of 1999) decided on December 13,
1999 (Para 8)

3. Ganpatlal Gupta & ors. Vs Additional District
Judge, Deoria & ors., Civil Misc. Writ Petition No.
50175 of 1999, decided on 21.03.2003 (Para 8)

4. Kamal Regmi Sharma & ors. Vs Nepal Bank
Limited & ors., Civil Revision No. 511 of 1986
decided on 14.10.1986 (Para 8)

Present petition challenges order dated
10.02.2023, passed by District Judge,
Kanpur Nagar, by which, application 27Ga filed u/Order VI Rule 17 of CPC in
S.C.C. Revision No. 187 of 2022 was
rejected.

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Shesh Kumar Srivastava,
learned counsel for petitioner and Sri
Shantanu Srivastava, learned counsel for
respondent.

2. Present petition has been filed
challenging the order dated 10.02.2023
passed by District Judge, Kanpur Nagar, by
which, application 27-Ga filed under Order
VI Rule 17 of CPC in S.C.C. Revision No.
187 of 2022 was rejected.
5 All. Ramesh Duggal @ Pappu Vs. Pt. Ram Shanker Mishra Trust Chief Office, Kanpur Nagar 257

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

4. Brief facts of the case are as
follows. The SCC Suit No. 149 of 2015
was filed for ejectment and recovery of
damages under Section 26 of the Provincial
Small Cause Courts Act, 1887 (hereinafter
referred to as ''Act, 1887') in which written
statement was filed by the petitionerdefendant denying the allegations, but
accepting
the
respondent-plaintiff
as
landlord. The said suit was ex parte decreed
vide order dated 08.07.2022. Against the
order dated 08.07.2022, petitioner-defendant
has filed Revision under Section 25 of Act,
1887 before District Judge, Kanpur Nagar. It is
undisputed that petitioner-defendant was a
tenant of Pt. Ram Shanker Mishra Trust
established by a duly registered trust deed. Case
of petitioner-defendant is that on 07.12.20217,
trust deed was filed by respondent-plaintiff,
then petitioner-defendant could know that Sri
Uma Shanker Mishra respondent-plaintiff is a
forge trustee and fraudulently presenting
himself as Sarvarakaar collecting amount of
rent also. After knowing this fact, petitionerdefendant has filed application 27-Ga dated
15.12.2022 under Order VI Rule 17 of CPC for
amendment in written statement.

5. Learned counsel for petitioner
submitted that under the provisions of
Order VI Rule 17 of Civil Procedure Code,
1908 (hereinafter referred to as ''CPC'),
amendment may be sought at any stage of
proceeding and it is required on the part of
Court concerned to decide the application
on merits.

6. He further submitted that in written
statement, under bonafide belief, petitioner
has accepted the respondent-plaintiff as
landlord and he could know about the trust
deed only on 07.12.2017, which transpires
that
respondent
is
a
forged
trustee
presenting himself as Sarvarakaar and not a
landlord. Thereafter in the year 2022,
petitioner-defendant has moved application
27-Ga under Order VI Rule 17 of CPC for
amendment in his written statement. It is
further submitted that once petitionerdefendant
has
disputed
the
ownership/landlordship, it is required on
the part of Revisional Court to allow the
application and invite objection upon the
same, thereafter proceed to decide the case
on merits.

7. He next submitted that once
respondent-plaintiff is not a landlord, the
suit filed by him is not maintainable and it's
a legal issue goes to the roots of the
controversy, therefore, it is required on the
part of Revisional Court to allow the
amendment
application
even
at
the
revisional stage.

8. It is further submitted that in light
of settled provisions of law, Revisional
Court must have been very liberal while
considering amendment application under
Order VI Rule 17 of CPC for the purpose
of substantial justice. In support of his
contention, he has placed reliance upon the
judgments of Apex Court as well as this
Court in the matters of Surendra Kumar
Sharma vs. Makhan Singh; 2009 (3) ARC
427, B.K.N. Pillai vs. P. Pillai; Civil
Appeal No. 7222-23 of 1999 (arising out
of S.L.P. (Civil) No. 14540-14541 of 1999)
decided on December 13, 1999, Ganpatlal
Gupta and others vs. Additional District
Judge, Deoria and others; Civil Misc. Writ
Petition No. 50175 of 1999 decided on
21.03.2003 and Kamal Regmi Sharma and
others vs. Nepal Bank Limited and others
258 INDIAN LAW REPORTS ALLAHABAD SERIES
(Civil Revision No. 511 of 1986 decided on
14.10.1986.

9. Sri Shantanu Srivastava, learned
counsel for respondent submitted that it is a
summaryproceeding and after final disposal
of suit, no such amendment may be
allowed. He further pointed out that Order
VI Rule 17 of CPC clearly provides 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. The trust deed was very well in
existence since the the date of tenancy as
claimed by the petitioner-defendant and it
is required on his part to aver the same in
his written statement, if it is in his favour.
Even as per case of petitioner-defendant
itself, he could know about the trust deed
only on 07.12.2017, he must have file
application under Order VI Rule 17 of CPC
immediately thereafter and not after final
disposal of the suit on 08.07.2022 and on
15.12.2022 during pendency of SCC
revision under the advice of counsel. It
clearly transpires that conditions of due
diligence have not been fulfilled and only
purpose to file application is to delay the
proceeding. He further submitted that filing
of amendment application at such belated
stage does not meet the conditions of due
diligence as provided in Order VI Rule 17
of CPC, therefore, he may not file
amendment
application
before
the
Revisional Court at a very belated stage. In
support of his contention, he has placed
reliance upon the judgments of this Court
passed in Hari Shanker and 5 ors. vs.
Bhagwati Prasad Mishra; 2014 0 Supreme
(All) 3127, decided on 30.10.2014 and
Hari Narayan v. Shanti Devi; 2019 SCC
OnLine All 2380, decided on 28.05.2019.

10. He next submitted that once, on
the basis of admission, any right accrued in
favour of plaintiff cannot be taken away by
the way of filing amendment application
after judgment and decree. In support of his
contention, he has placed reliance upon the
judgment of this Court in the matter of Raj
Kumar
Mulani
vs.
Ramesh
Kumar
Hemrajani; 2019 0 Supreme(All) 1604,
decided on 19.09.2019.

11. He also submitted that against the
ex parte decree, petitioner has filed
application under Order IX Rule 13 of
CPC, which was dismissed by S.C.C Court,
Kanpur Nagar vide order dated 10.01.2023.
He has produced the certified copy of order
dated 10.01.2023, which is taken on record.

12. Being confronted by the Court,
learned counsel for petitioner could not
explain
the
delay
for
filing
of
amendment application after more than
five years from the date of knowledge of
sale deed as per his own admission. He
also could not demonstrate from the trust
deed or from any record as to why
respondent-plaintiff
is
not
the
Sarvarakaar and cannot maintain the
suit. He only submitted that onus is upon
the plaintiff-respondent to prove his
ownership.

13. I have considered the submissions
advanced by counsel for parties and
perused the records as well as judgments
cited above.

14. Above noted facts are not disputed
between the parties.

15. Basic issue before this Court is
about the interpretation of Order VI Rule
17 of CPC, which is quoted here:_
5 All. Ramesh Duggal @ Pappu Vs. Pt. Ram Shanker Mishra Trust Chief Office, Kanpur Nagar 259

"[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.]"

16. From the perusal of Order VI Rule
17 of CPC, it is clear that amendment
application
may
be
allowed
before
commencement of trial, but in case, Court
is of the view that in spite of due diligence,
party could not have raised the matter
before
the
commencement
of
trial,
application may be allowed. In the present
case, it is required on the part of Court to
see about the due diligence made by
petitioner-defendant to file amendment
application based upon date of knowledge
of trust deed and also the effect of
amendment upon the judgment and decree
of suit, if allowed.

17. First of all, I am coming to the
question of due diligence made by the
petitioner. It is undisputed that trust deed
was very well in existence on the date of
filing of suit as well as written statement,
therefore, it is required on the part of
petitioner-defendant to made averment
about the same, while filing written
statement and also place before the Court
as evidence. Here in written statement, it
has been accepted by the petitionerdefendant
that
respondent-plaintiff
is
landlord and even as per his own case,
having knowledge of trust deed from
07.12.2017, he has not filed any application
under Order VI Rule 17 of CPC for about
five years. The suit was decided vide order
dated 08.07.2022 and thereafter, revision
was also filed and in revision too, no such
ground has been taken, but at a very belated
stage, under the advice of counsel,
application 27-Ga has been filed under
Order VI Rule 17 CPC.

18.
The
conduct
of
petitionerdefendant clearly shows that trust deed was
very well present from the date of filing of
written statement and as per admission of
petitioner-defendant,
it
was
in
his
knowledge from 07.12.2017, but he has
never filed any application under Order VI
Rule 17 of CPC, which shows that there is
absolute lack of due diligence. In fact
contrary to that, having knowledge of each
and every facts, petitioner-defendant has
never raised before the court by the way of
written statement or application under
Order VI Rule 17 of CPC and once the suit
has been decided against him, with an
ulterior motive, an application has been
filed. Therefore, this Court is of the view
that such amendment application does not
fulfil the condition of Order VI Rule 17 of
CPC as it is having absolute lack of due
diligence rather it is a case of negligence as
petitioner-defendant was sleeping over the
matter for a long time without any
explanation.

19. In the judgments so relied upon by
learned counsel for petitioner-defendant,
Courts have only considered as to whether
at a very belated stage, amendment may be
allowed or not and Courts have given
findings that for the purpose of substantive
justice, delay cannot be a ground for
rejection.
260 INDIAN LAW REPORTS ALLAHABAD SERIES

20. This case is not a case of delay as
the trust deed was well in existence from
the date of filing of written statement and
as per admission of petitioner-defendant
also, it
is in his knowledge from
07.12.2017, but amendment application has
not been filed. In fact, it is a case where the
conditions of due diligence provided under
Order VI Rule 17 of CPC has not been
fulfilled and without any justification,
amendment application has been filed at
revisional stage after final judgment and
order dated 08.07.2022 passed in suit.
Therefore, judgments so relied upon by
learned counsel for petitioner-defendant
shall not come in the rescue of petitionerdefendant as it is case of negligence and
not of bona fide delay.

21. I have perused the judgment
passed in Hari Shanker (Supra), in which,
Court has considered about the concept of
''due diligence'. Relevant paragraphs are
quoted below:-

"9. Supreme Court in Modi
Spinning & Weaving Mills Company Ltd.
Vs. Ladha Ram, AIR 1977 SC 680, held
that the defendants cannot be allowed to
change completely the case made in paras
25 and 26 of the written statement and
substitute an entirely different and new case.
It is true that inconsistent pleas can be made
in pleadings but the effect of substitution of
paras 25 and 26 is not making inconsistent
and alternative pleadings but it is seeking to
displace the plaintiff completely from the
admissions made by the defendants in the
written statement. If such amendments are
allowed the plaintiff will be irretrievably
prejudiced by being denied the opportunity of
extracting the admission from the defendants.
Same view has been taken in Heera Lal Vs.
Kalyan Mal, (1998) 1 SCC 278, Gautam
Swarup Vs. Leela Jetly, (2008) 7 SCC 85,
Sumesh Singh Vs. Phoolan Devi, (2009) 12
SCC 689 and Vishwanath Agrawal Vs.
Savitri Bera, (2009) 15 SCC 693.

10. In B.K. Narayana Pillai v.
Parameswaran Pillai, (2000) 1 SCC 712,
Supreme Court held that the principles
applicable to the amendments of the plaint
are equally applicable to the amendments of
the written statements. The courts are more
generous in allowing the amendment of the
written statement as the question of prejudice
is less likely to operate in that event. The
defendant has a right to take alternative plea
in defence which, however, is subject to an
exception that by the proposed amendment
the other side should not be subjected to
injustice and that any admission made in
favour of the plaintiff is not withdrawn. All
amendments of the pleadings should be
allowed
which
are
necessary
for
determination of the real controversies in the
suit provided the proposed amendment does
not alter or substitute a new cause of action
on the basis of which the original lis was
raised or defence taken. Inconsistent and
contradictory allegations in negation to the
admitted position of facts or mutually
destructive allegations of facts should not be
allowed to be incorporated by means of
amendment to the pleadings. Proposed
amendment should not cause such prejudice
to
the
other
side
which
cannot
be
compensated by costs. No amendment should
be allowed which amounts to or relates (sic
results) in defeating a legal right accruing to
the opposite party on account of lapse of
time. The delay in filing the petition for
amendment of the pleadings should be
properly compensated by costs and error or
mistake which, if not fraudulent, should not
be made a ground for rejecting the
application for amendment of plaint or
written statement.

Thus in view of the authoritative
pronouncements of Supreme Court, the
5 All. Ramesh Duggal @ Pappu Vs. Pt. Ram Shanker Mishra Trust Chief Office, Kanpur Nagar 261
case law relied upon by the counsel for the
petitioners cannot be followed.

11. Now the next question arises
as to whether the proposed amendment can
be allowed in view of Proviso to Order VI
Rule 17 C.P.C. The defendant alleged that
the
fact
relating
to
the
proposed
amendment was noticed at the time of
preparation
of
the
appeal
for
final
arguments on 03.08.2014.

12. Supreme Court in Salem
Advocate Bar Assn. (II) v. Union of India,
(2005) 6 SCC 344, held that Order VI Rule
17 of the Code deals with amendment of
pleadings. By Amendment Act 46 of 1999,
this provision was deleted. It has again
been restored by Amendment Act 22 of
2002 but with an added proviso to prevent
application for amendment 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 trial. The proviso, to some extent,
curtails
absolute
discretion
to
allow
amendment
at
any
stage.
Now,
if
application is filed after commencement of
trial, it has to be shown that in spite of due
diligence, such amendment could not have
been sought earlier. The object is to prevent
frivolous applications which are filed to
delay the trial. There is no illegality in the
provision.

13. The phrase "due diligence"
came for consideration before Supreme
Court in Chander Kanta Bansal v. Rajinder
Singh Anand, AIR 2008 SC 2234, in which
it has been held that the words "due
diligence" have not been defined in the
Code. According to Oxford Dictionary
(Edn. 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 Edn.), "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 Edn. 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.

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 diligence" 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,
262 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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. "

22. This issue was again considered by
this Court in Hari Narayan (Supra).
Relevant paragraphs are quoted below:-

"3. Contention of the learned
counsel for the revisionist is that under
Order VI Rule 17 the court may at any
stage of proceedings allow the amendment
of pleadings so as to determine the real
question in controversy between the
parties, and the trial court has rejected the
amendment application without recording
any finding to arrive at a conclusion that in
spite of due diligence the defendant could
not have sought the amendment before the
commencement of the trial.

7. The proviso to Rule 17 under
Order VI, as inserted by the Code of Civil
Procedure
(Amendment)
Act,
2002,
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 comes to
the conclusion that in spite of due
diligence, the party could not have raised
the matter before the commencement of the
trial.

8. 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.

9. The provisions contained under
Order VI Rule 17 proviso as introduced in
the year 2002 came up for consideration in
the case of J. Samuel Vs. Gattu Mahesh &
Ors.2 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 has also been 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:
5 All. Ramesh Duggal @ Pappu Vs. Pt. Ram Shanker Mishra Trust Chief Office, Kanpur Nagar 263

"... 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. 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]."

10. Reference may also be had to
the judgment in the case of Revajeetu
Builders
and
Developers
Vs.
Narayanaswami and Sons & Ors.1 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.
264 INDIAN LAW REPORTS ALLAHABAD SERIES

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."

11. In a recent judgment in the
case of M. Ravanna Vs. Anjanamma3, 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."

12. In the case at hand, the court
below upon due consideration of the facts
of the case 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 VI 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. "

23. The controversy involved in the
present case is squarely covered with
judgements of Hari Shanker (Supra) and
Hari
Narayan
(Supra).
Therefore,
considering all facts and circumstances of
the case, this Court is of the view that due
diligence is a very important factor while
allowing amendment application under
Order VI Rule 17 of CPC and applicant has
to prove that he has made all possible
efforts, but even after that, he could not
know about the documents or facts which
are most relevant to decide the controversy.
In case documents or facts are available or
5 All. Ramesh Duggal @ Pappu Vs. Pt. Ram Shanker Mishra Trust Chief Office, Kanpur Nagar 265
within the knowledge of petitioner, at any
stage, if any application is filed, same
cannot be allowed as it would not fulfil the
para meter of due diligence as provided in
Order VI Rule 17 of CPC.

24. So far as second issue is as to
whether allowing of such amendment
application would adversely affect the right
of plaintiff-respondent or not.

25. This issue was also subject matter
of Raj Kumar Mulani (Supra). Relevant
paragraph Nos. 9 to 12 are quoted below:-

"9. The judgment of two Judge
Bench of Hon'ble Supreme Court in Sushil
Kumar Jain (supra) is based on another
judgment of Hon'ble Supreme Court in
Panchdeo Narain Srivastava Vs. Jyoti
Sahay, 1984 Supp SCC 594 in which an
observation has been made that an
admission made by parties may be
withdrawn. The relevant paragraph of the
judgment of the Hon'ble Supreme Court in
the case of Sushil Kumar Jain (supra)
relied by learned counsel for the defendanttenant/petitioner, is reproduced below:-

"9. That apart, a careful reading
of the application for amendment of the
written statement, we are of the view that
the appellant seeks to only elaborate and
clarify
the
earlier
inadvertence
and
confusion made in his written statement.
Even assuming that there was admission
made by the appellant in his original
written
statement,
then
also,
such
admission can be explained by amendment
of his written statement even by taking
inconsistent pleas or substituting or altering
his defence.

10. At this stage, we may remind
ourselves that law is now well settled that
an amendment of a plaint and amendment
of a written statement are not necessarily
governed by exactly the same principle.
Adding a new ground of defence or
substituting or altering a defence does not
raise the same problem as adding, altering,
substituting a new cause of action (See
Baldev Singh & Ors. vs. Manohar Singh &
Anr. AIR 2006 SC 2832).

12. Keeping these principles in
mind, let us now take up the question raised
before us by the learned counsel for the
parties. As stated herein earlier, the
admission made by a defendant in his
written statement can be explained by filing
the application for amendment of the same.
This principle has been settled by this
Court in Panchdeo Narain Srivastava Vs.
K. Jyoti Sahay AIR 1983 SC 462, while
considering this issue, held that the
admission made by a party may be
withdrawn or may be explained. It was
observed in paragraph 3 of the said
decision as follows:-

"An admission made by a party
may be withdrawn or may be explained
away. Therefore, it cannot be said that by
amendment, an admission of fact cannot be
withdrawn.........."

10. The judgments of the Hon'ble
Supreme
Court
in
Panchdeo
Narain
Srivastava (supra) and Sushil Kumar Jain
(supra) have been considered by a three
Judges Bench of Hon'ble Supreme Court in
paragraph nos.16 &17 of the judgment in
Ram Niranjan Kajaria (supra) and both the
aforesaid judgments have been over ruled
and it has been held "that a categorical
admission made in the pleadings cannot be
permitted to be withdrawn by way of an
amendment". Paragraph nos. 19, 20, 22, &
23 of the judgment in Ram Niranjan
Kajaria (supra) are reproduced below:-

"19. In Gautam Sarup v. Leela
Jetly and others (2008) 7 SCC 85,after
considering Panchdeo Narain Srivastava
(supra) and Modi Spinning and Weaving
266 INDIAN LAW REPORTS ALLAHABAD SERIES
Mills Co. Ltd. v. Ladha Ram & Co. (supra)
and several other decisions dealing with the
amendment on withdrawal of admissions in
the pleadings, it was held at Paragraph-28
as follows:

"28. What, therefore, emerges
from the discussions made hereinbefore is
that a categorical admission cannot be
resiled from but, in a given case, it may be
explained or clarified. Offering explanation
in regard to an admission or explaining
away the same, however, would depend
upon the nature and character thereof. It
may be that a defendant is entitled to take
an alternative plea. Such alternative pleas,
however, cannot be mutually destructive of
each other."

20. On amendments generally, in
the decision reported in Revajeetu Builders
and Developers v. Narayanaswamy and
Sons and others(2009) 10 SCC 84 ,after
referring to Gautam Sarup (supra), the
principles
on
amendment
have
been
summarized at Paragraph-63. It has been
held as follows: ( Revajeetu Builders case
(2009) 10 SCC 84, SCC p. 102)

"63. On critically analyzing 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."

22.