# Sri Firoz Uddin & Ors v. Sri Anwar Uddin

- **Citation:** (2023) 6 ILRA 303
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-08
- **Case number:** Matters Under Article 227 No. 5213 of 2023
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-firoz-uddin-ors-v-sri-anwar-uddin-50460
- **Pages:** 13

## Headnote

(A) Constitution of India - Article 227 -
The Code of Civil Procedure, 1908 - Order
VI Rule 17 - Amendment of pleadings -
courts should be liberal in granting the
prayer for amendment of pleadings unless
serious injustice or irreparable loss is
caused to the other side or on the ground
that the prayer for amendment was not a
bonafide one - Change of counsel cannot
be a ground for filing amendment.(Para -
12, 20)

(B) Word of phrases - "due diligence" -
determines
the
scope
of
a
party's
304 INDIAN LAW REPORTS ALLAHABAD SERIES
constructive knowledge, claim and is very
critical to the outcome of the suit - due
diligence is the idea that reasonable
investigation is necessary before certain
kinds of relief are requested - a test for
determining whether to exercise the
discretion
in
situations
of
requested
amendment after the commencement of
trial - 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. (Para
- 14 to 19)

Amendment
application
filed
after
commencement of trial - received affidavits of
plaintiff and defendants - petitioners filed
application under Order VI Rule 17 CPC - to
bring new facts on record - due to a change of
counsel - amendment application filed for
adding additional facts - as later pointed out by
new counsel engaged - due diligence made in
bringing facts on record not disputed.(Para -
11)

HELD:-Amendment
application
lacks
information, except for the engagement of new
counsel, and due diligence conditions cannot be
satisfied. Despite sincere efforts, they couldn't
find the fact to be amended in a written
statement.
No
interference
required
in
impugned order.(Para - 20)

Petition dismissed. (E-7)

List of Cases cited:

## Text

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6 All. Sri Firoz Uddin & Ors. Vs. Sri Anwar Uddin
303
fixed. If they don't, they do so at their own
peril. Insofar as present case is concerned,
if the stakes were high, the plaintiff ought
to have been more serious and vigilant in
prosecuting the suit and producing its
evidence. If despite three opportunities, no
evidence was let in by the plaintiff, in our
view, it deserved no sympathy in second
appeal in exercise of power under Section
100 CPC. We find no justification at all for
the High Court in upsetting the concurrent
judgment of the courts below. The High
Court was clearly in error in giving the
plaintiff
an
opportunity
to
produce
evidence when no justification for that
course existed."

13. In this matter, Apex Court has highly
depreciated
the
tendency
of
grant
of
adjounrment and also taken firm view that
change of lawyer, continuance of illness of
lawyer or similar grounds will not justify more
than three adjournments to a party during the
hearing of the suit. In the present case, number
of adjournments are 22, therefore, present
dispute is squarely covered with the ratio of
law laid down by the Apex Court and
petitioner is not entitled for any relief.

14. From perusal of the judgments cited
hereinavove as well as Order XVII Rule 1 & 2
of CPC, it is apparently clear that intention of
legislation is to complete the hearing of the
suit at the earliest for which number of
adjournments have been confined to three
times only and further rigorous conditions
have been imposed for grant of adjournment,
which also negates engagement of counsel in
another Court.

15. In light of interpretation made by
the Apex Court, this Court is also of the
view that adjournment has to be granted on
bonafide
reasons
and
unavoidable
circumstances for limited occasion not for
many occasion as the case is hear and
further
absence
of
counsel
or
his
engagement in other Court cannot be
ground for adjournment coupled with this
fact that several adjournments were earlier
sought.

16. In view of facts and circumstances
of the case as well as law discussed
hereinabove, no case is made out for
interference in the impugned orders. The
petition lacks merit and is, accordingly,
dismissed. No order as to costs.
----------
(2023) 6 ILRA 303
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 5213 of 2023

Sri Firoz Uddin & Ors. ...Petitioners
Versus
Sri Anwar Uddin ...Respondent

Counsel for the Petitioners:
Sri Jata Shanker Pandey

Counsel for the Respondent:
Sri Ravi Shanker Pathak

(A) Constitution of India - Article 227 -
The Code of Civil Procedure, 1908 - Order
VI Rule 17 - Amendment of pleadings -
courts should be liberal in granting the
prayer for amendment of pleadings unless
serious injustice or irreparable loss is
caused to the other side or on the ground
that the prayer for amendment was not a
bonafide one - Change of counsel cannot
be a ground for filing amendment.(Para -
12, 20)

(B) Word of phrases - "due diligence" -
determines
the
scope
of
a
party's
304 INDIAN LAW REPORTS ALLAHABAD SERIES
constructive knowledge, claim and is very
critical to the outcome of the suit - due
diligence is the idea that reasonable
investigation is necessary before certain
kinds of relief are requested - a test for
determining whether to exercise the
discretion
in
situations
of
requested
amendment after the commencement of
trial - 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. (Para
- 14 to 19)

Amendment
application
filed
after
commencement of trial - received affidavits of
plaintiff and defendants - petitioners filed
application under Order VI Rule 17 CPC - to
bring new facts on record - due to a change of
counsel - amendment application filed for
adding additional facts - as later pointed out by
new counsel engaged - due diligence made in
bringing facts on record not disputed.(Para -
11)

HELD:-Amendment
application
lacks
information, except for the engagement of new
counsel, and due diligence conditions cannot be
satisfied. Despite sincere efforts, they couldn't
find the fact to be amended in a written
statement.
No
interference
required
in
impugned order.(Para - 20)

Petition dismissed. (E-7)

List of Cases cited:

1. Usha Balashaheb Swami & ors. Vs Kiran
Appaso Swami & ors. , 2007 (3) Supreme (SC)
582

2. Hari Shanker & ors. Vs Bhagwati Prasad
Mishra , 2014 0 Supreme (All) 3127

3. Sagwa Singh Tyagi Vs The A.D.J. & ors. ,
2014 0 Supreme (All) 3433

4. Hari Narayan Vs Shanti Devi , 2019 SCC
OnLine All 2380

5. Ramesh Duggal @ Pappu Vs Pt. Ram Shanker
Mishra Trust Chief Office, Article 227 No. 2658
of 2023
(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard learned counsel for the
petitioners and Sri Ravi Shanker Pathak,
learned counsel for the respondent.

2. Present petition has been filed with
following prayer;

"It
is,
therefore,
Most
Respectfully prayed that this Hon'ble Court
may kindly be pleased to stay the effect and
operation of the impugned order dated
11.04.2023
passed
by
Prescribed
Authority/ JSCC Agra in P.A. Case No. 42
of 2015, Anwar Uddin and Firoz Uddin
(since deceased) and others."

3. 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.

4. Learned counsel for the petitioners
submitted that P.A. Case No. 42 of 2015
was filed by plaintiff- respondent. As
petitioners- defendants had not appeared
and trial Court vide order dated 04.01.2017
proceeded ex parte, upon which recall a
application was filed, which was rejected
vide order dated 03.07.2018. Both orders
were challenged before this Court by filing
Matters Under Article 227 No. 5779 of
2018, which was disposed of vide order
dated 19.12.2022 with direction to the
petitioner to deposit the cost of Rs. 1500/-
on or before the 10th of January, 2023 and
further held that his written statement,
which is already on record, will be taken
into consideration and he would also file
his affidavit of evidence by 10th of
January, 2023. He next submitted that in
compliance of order dated 19.12.2022,
petitioners have deposited Rs. 1500/- on
6 All. Sri Firoz Uddin & Ors. Vs. Sri Anwar Uddin
305
06.01.2023 and the written statement was
also taken on record.

5. He further submitted that after
receiving
the
affidavit
of
applicant,
petitioners have filed application under
Order VI Rule 17 CPC for amendment of
written statement, which was rejected on
the ground that said amendment is already
part of written statement and secondly,
petitioners- defendants have not given any
proper reason as to why the said facts are
not incorporated in written statement filed
earlier. Petitioners have taken specific
ground in their application under Order VI
Rule 17 CPC that earlier written statement
was filed by Sri R.P. Singh Dhakare,
Advocate
and
after
engaging
new
Advocate, Sri Rajat Kumar Saraswat,
petitioners have properly gone through the
paper book and suggested for amendment.
Therefore, under such facts of the case, it is
required on the part of trial Court to allow
the amendment.

6. He next submitted that while
dealing
with
amendment
in
written
statement, Court should have been more
liberal. In support of his contention, he has
placed reliance upon the judgment of Apex
Court in the matter of Usha Balashaheb
Swami & others Vs. Kiran Appaso Swami
& others; 2007 (3) Supreme (SC) 582.

7. Per contra, Sri Ravi Shanker
Pathak, learned counsel for the respondent
has vehemently opposed the submissions
raised by learned counsel for the petitioners
and submitted that there is no dispute on
the
point
that
while
dealing
with
amendment
application
in
written
statement, Court should have been more
liberal, but he firmly submitted that while
filing application after commencement of
trial, it is mandatory requirement to show
the efforts so made by the petitionersdefendants and prove that even after due
diligence, they were not having knowledge
of those facts. Mere change of counsel
cannot be a ground to allow the amendment
application at a very belated stage and in
the present case, even after submission of
affidavit of witness by the opposite party
filing of amendment application is nothing
but
dilatory
tactics
adopted
by
the
petitioners-defendants. In support of his
contention, he has placed reliance upon the
judgments of this Court in Hari Shanker
and 5 others Vs. Bhagwati Prasad Mishra;
2014 0 Supreme (All) 3127, decided on
31.10.2014, Sagwa Singh Tyagi Vs. The
Additional District Judge and 6 others;
2014 0 Supreme (All) 3433, decided on
11.11.2014, Hari Narayan v. Shanti Devi;
2019 SCC OnLine All 2380, decided on
28.05.2019, and Matter Under Article 227
No. 2658 of 2023 (Ramesh Duggal Alias
Pappu Vs. Pt. Ram Shanker Mishra Trust
Chief Office), decided on 05.05.2023.

8. I have considered the rival
submissions raised by learned counsel for
the parties and perused the records,
provision of Order VI Rule 17 CPC as well
as judgments relied upon.

9. Issue before this Court is as to
whether while deciding the amendment
application for written statement, issue of
due diligence has to be taken care of or not
?

10. Present issue is arising out of
order VI Rule 17 CPC, therefore, the same
is being quoted below;

"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
306 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

11. Facts of the case are not disputed
that amendment application was filed after
commencement of trial, receiving the
affidavits of plaintiff and submission of
affidavits of defendants also. In the
amendment application, the only ground
taken is that due to change of counsel,
petitioners want to bring new facts on
record and for that reason, they have filed
application under Order VI Rule 17 CPC
for amendment. Except this, there is no
reason about the due diligence so made by
them for bringing the facts on record. The
amendment application was filed for
adding additional facts as later on pointed
out by the new counsel so engaged.

12. I have perused the judgment of
Apex Court in the matter of Usha
Balashaheb
Swami
(supra). Relevant
paragraphs of the said judgment are quoted
below;

"19. It is now well-settled by
various decisions of this Court as well as
those by High Courts that the courts should
be liberal in granting the prayer for
amendment of pleadings unless serious
injustice or irreparable loss is caused to
the other side or on the ground that the
prayer for amendment was not a bonafide
one. In this connection, the observation of
the Privy Council in the case of Ma Shwe
Mya v. Maung Mo Hnaung [AIR 1922 P.C.
249] may be taken note of. The Privy
Council observed:

"All rules of courts are nothing
but provisions intended to secure the
proper administration of justice and it is,
therefore, essential that they should be
made to serve and be subordinate to that
purpose, so that full powers of amendment
must be enjoyed and should always be
liberally exercised, but nonetheless no
power has yet been given to enable one
distinct cause of action to be substituted for
another, nor to change by means of
amendment, the subject-matter of the suit.
(Underlining is ours)"

20. It is equally well settled
principle that a prayer for amendment of
the plaint and a prayer for amendment of
the written statement stand on different
footings.
The
general
principle
that
amendment of pleadings cannot be allowed
so as to alter materially or substitute cause
of action or the nature of claim applies to
amendments to plaint. It has no counterpart
in the principles relating to amendment of
the written statement. Therefore, addition
of a new ground of defence or substituting
or altering a defence or taking inconsistent
pleas in the written statement would not be
objectionable while adding, altering or
substituting a new cause of action in the
plaint may be objectionable.

21. Such being the settled law, we
must hold that in the case of amendment of
a written statement, the courts are more
liberal in allowing an amendment than that
of a plaint as the question of prejudice
would be far less in the former than in the
latter case [see B.K. Nrayana Pillai v.
Parameswaran Pillai (2000(1) SCC 712)
and Baldev Singh & Ors v. Manohar Singh
(2006 (6) SCC 498)]. Even the decision
relied on by the plaintiff in Modi Spinning
6 All. Sri Firoz Uddin & Ors. Vs. Sri Anwar Uddin
307
(supra) clearly recognises that inconsistent
pleas can be taken in the pleadings. In this
context, we may also refer to the decision
of this Court in Basavan Jaggu Dhobi v.
Sukhnandan Ramdas Chaudhary (Dead)
[1995 Supp (3) SCC 179]. In that case, the
defendant had initially taken up the stand
that he was a joint tenant along with
others. Subsequently, he submitted that he
was a licensee for monetary consideration
who was deemed to be a tenant as per the
provisions of Section 15A of the Bombay
Rents, Hotel and Lodging House Rates
Control Act, 1947. This Court held that the
defendant could have validly taken such an
inconsistent defence. While allowing the
amendment of the written statement, this
Court observed in Basavan Jaggu Dhobi's
case (supra) as follows :-

"As regards the first contention,
we are afraid that the courts below have
gone wrong in holding that it is not open to
the defendant to amend his statement under
Order 6 Rule 17 CPC by taking a contrary
stand than was stated originally in the
written statement. This is opposed to the
settled law open to a defendant to take even
contrary stands or contradictory stands,
the cause of action is not in any manner
affected. That will apply only to a case of
the plaint being amended so as to introduce
a new cause of action."

22. As we have already noted
herein
earlier
that
in
allowing
the
amendment of the written statement a
liberal approach is a general view when
admittedly in the event of allowing the
amendment the other party can be
compensated in money. Technicality of law
should not be permitted to hamper the
Courts in the administration of justice
between the parties. In the case of L.J.
Leach and Co. Ltd. v. Jardine Skinner and
Co. [AIR 1957 SC 357], this Court
observed "that the Courts are more
generous in allowing amendment of the
written statement as the question of
prejudice is less likely to operate in that
event". In that case this Court also held
"that the defendant has 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 serious injustice."

23. Keeping these principles in
mind, namely, that in a case of amendment
of a written statement the Courts would be
more liberal in allowing than that of a
plaint as the question of prejudice would be
far less in the former than in the latter and
addition of a new ground of defence or
substituting or altering a defence or taking
inconsistent pleas in the written statement
can also be allowed, we may now proceed
to consider whether the High Court was
justified in rejecting the application for
amendment of the written statement.

...................................

32. For the reasons aforesaid, the
appeal is allowed and the order of the High
Court rejecting the prayer for amendment
of the written statement is set aside. The
application for amendment of the written
statement thus stands allowed. The trial
court is now directed to dispose of the suit
at the earliest possible time preferably
within six months from the date of
communication of this order without
granting any unnecessary adjournment to
either of the parties."

13. From the perusal of aforesaid
judgment, there is no doubt that Court is of
the firm view that while deciding the
amendment application for amendment in
written statement, Court must take some
liberal view. Even in case of inconsistent
view or alternative plea, the same should
have been allowed, but in the said
judgment, at no point of time, there is any
308 INDIAN LAW REPORTS ALLAHABAD SERIES
opinion of the Court that proviso of due
diligence
shall
not
be
taken
into
consideration
while
deciding
the
application under Order VI Rule 17 CPC
for amendment in written statement. In
present case, there is no explanation about
the due diligence except the change of
counsel.

14. I have also perused the judgment
passed in Hari Shanker (Supra), in which,
Court has considered about the concept of
'due diligence'. Relevant paragraphs of the
said judgment 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.

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
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
6 All. Sri Firoz Uddin & Ors. Vs. Sri Anwar Uddin
309
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,
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
310 INDIAN LAW REPORTS ALLAHABAD SERIES
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. "

15. This issue was again considered
by this Court in Sagwa Singh Tyagi
(Supra). Relevant paragraphs of the said
judgment are quoted below:-

"13. In J. Samuel and others v.
Gattu Mahesh and others: (2012) 2 SCC
300, the Court observed that, on a proper
interpretation of proviso to Rule 17, Order
6 CPC, the party has to satisfy the Court
that he could not discover that ground
which
was
pleaded
by
proposed
amendment of the plaint, despite due
diligence. No doubt, Rule 17 confers power
on the Court to amend pleading at any
stage of the proceedings. However, the
proviso restricts that power, once the trial
has commenced. Unless the Court is
satisfied that there is a reasonable cause
for allowing amendment, normally the
Court has to reject such requests. Due
diligence
is
the
idea
behind
such
restriction,
that
is,
a
reasonable
investigation is necessary before certain
kinds of relief are requested. Undoubtedly,
diligent efforts are a requirement for a
party
seeking
to
use
adjudicatory
mechanism to attain an undisputed relief.
An advocate representing someone has to
engage himself in due diligence to
determine that the representations made by
him are factually correct and sufficient.
The term due diligence is specifically used
in the Court so as to provide a test for
determining
whether
to
exercise
a
distinction in a situation of requested
amendment after the commencement of
trial. A party requesting a relief stemming
out of a claim is required to exercise due
diligence. It is a requirement which cannot
be dispensed with. The term 'due diligence'
determines
the
scope
of
parties'
constructive knowledge, and is critical to
the outcome of the suit. The Court also
observed that decisions given before
insertion of proviso to Order 6, Rule 17
CPC may not help the parties to decide
cases after such amendment has been
inserted in CPC. The entire object of
amendment to Order 6, Rule 17 , as
introduced in the year 2002, is to stifle
filing of application for amendment of a
pleading, subsequent to the commencement
of trial court, to avoid surprises and that
the parties had sufficient knowledge of
other's case. It also helps checking delays
in filing applications. The Court in making
the aforesaid observation relied on its
earlier decisions in Aniglase Yohannan v.
Ramlatha and others: (2005) 7 SCC 534;
Chander Kanta Bansal v. Rajinder Singh
Anand: (2008) 5 SCC 117; Rajkumar
Gurawara (Dead) through LRs v. S.K.
Sarwagi and Company Private Limited and
another: (2008) 14 SCC 364; Vidyabai and
others v. Padmalatha and another: (2009)
2 SCC 409; and Man Kaur (Dead) by LRs
v. Hartar Singh Sangha, (2010) 10 SCC
512.

14. The view, I have taken above,
has also been reiterated by this Court in
Suraj Prakash v. Waqf Khudaband Tala
Mausooma, 2012(11) ADJ 524 and Civil
Misc. Writ Petition No. 61790 of 2012
(Shanti Swaroop v. Smt. Rama Sharma)
decided on 29.11.2012.
6 All. Sri Firoz Uddin & Ors. Vs. Sri Anwar Uddin
311

15. In the present case, the
amendment has been sought after the trial
has commenced, without satisfying the
Court as to why assertion of such facts
could not be made with due diligence
before commencement of trial when initial
pleadings were filed before trial court. On
this aspect virtually there is no averment. It
cannot be said that there is a proper
justification stated to do away the rider
imposed by proviso to Order 6, Rule 17
CPC. Therefore, I have no hesitation in
holding that the courts below have rightly
rejected
amendment
sought
by
the
petitioner. No legal or otherwise error can
be said to have been committed by Court
below so as to justify interference by this
Court
under
Article
226
of
the
Constitution."

16. This issue was also subject matter
of 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
312 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
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.

These are some of the important
factors which may be kept in mind while
dealing with application filed under Order
6 All. Sri Firoz Uddin & Ors. Vs. Sri Anwar Uddin
313
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. "

17. This matter was again considered
by this Court in the case of Ramesh
Duggal Alias Pappu (supra). Relevant
paragraph is quoted below;

"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
314 INDIAN LAW REPORTS ALLAHABAD SERIES
of trust deed and also the effect of
amendment upon the judgment and decree
of suit, if allowed.

...........................

..........................

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 petitioner-defendant
as it is case of negligence and not of bona
fide delay."

.......................................

......................................

"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
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."

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.