2012 Supreme(SC) 43

2012 (1) Supreme 568
SUPREME COURT OF INDIA
P. Sathasivam and J. Chelameswar, JJ.
J. Samuel and Others — Appellant(s)
versus
Gattu Mahesh and Others — Respondent(s)
Civil Appeal No. 561 of 2012
(Arising out of SLP (C) No. 8985 of 2011
Decided on : 16-1-2012

IMPORTANT POINTS
1. In a suit for specific performance of a contract, unless there is a specific averment that he has performed or has always been ready and willing to perform the essential terms of the contract, the suit filed by him is liable to be dismissed.
2. 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.
3. No doubt, Order VI, Rule 17 of Civil Procedure Code,1908 confers power on the court to amend the pleadings at any stage of the proceedings. However, proviso restricts that power once the trial has commenced.

Headnote:Civil Procedure Code,1908- Order VI, Rule 17 -Suit for specific performance- Written statement filed during pendency of suit, pointing out absence of mandatory requirements of Section 16(c) of Specific Relief Act-Application seeking amendment of plaint to incorporate specific pleading in compliance of section 16(c) of Specific Relief Act and Code on ground that same was missed due to typographical error-Dismissed –Revision petition-Allowed by High Court-Appeal-Instantly there was a clear lack of ‘due diligence’ and mistake committed certainly not came within preview of a typographical error- Act of neglecting to perform an action which one had an obligation to do cannot be called as a typographical error-As a consequence plea of typographical error held unsustainable since the situation was of lack of due diligence wherein such amendment is impliedly barred under the Code- The claim of typographical error/mistake being baseless could not be accepted- High Court committed an error in accepting the explanation that it was a typographical error to mention and it was an accidental slip-Impugned order of High Court set aside-Appeal allowed (Paras 15 to 18)

        Civil Procedure Code,1908- Order VI, Rule 17 -Amendment of plaint-Scope and ambit of- 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 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 that no injustice must be done to the other side and that amendment must be necessary for the purpose of determining real question in controversy between the parties- However to balance the interests of the parties in pursuit of doing justice, 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, party could not have raised the matter before the commencement of trial (Para 12)

        Words and Phrases - Due diligence -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 representations made are factually accurate and sufficient (Para 13)

        Words and Phrases - Typographical error -The term typographical error is defined as a mistake made in the printed/typed material during a printing/typing process- The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance- Hence the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error (Para 15)

       Facts of the Case :

        A. A contract for sale of suit property was entered into between the Respondent Nos. 1 and 2 herein with Karimnagar Diocese. Respondent Nos. 1 and 2 filed O.S. No. 9 of 2004 in the Court of II Additional District Judge, Karimnagar at Jagtial for specific performance of the contract of sale and for perpetual injunction. During the pendency of the suit, Karimnagar Diocese filed written statement pointing out the inherent defects, namely, absence of mandatory requirements of Section 16(c) of Specific Relief Act and Form 47, Appendix ‘A’ of the Code of Civil Procedure, 1908.

        B. Respondent Nos. 1 and 2 thereafter filed application under Order VI, Rule 17 of the Code seeking amendment of the plaint to incorporate specific pleading in compliance of the above section of the Specific Relief Act and the Code on the ground that the same was missed due to typographical error. By order , the II Additional District Judge dismissed the application for amendment filed by the Respondent Nos. 1 and 2 herein. Aggrieved by the order, the Respondents herein approached the High Court by filing Revision Petition . High Court, by impugned order allowed the amendment sought for by Respondent Nos. 1 and 2 .

        C. The only point for consideration in present appeal was whether High Court was right in allowing the application filed under Order VI Rule 17 CPC for amendment of the plaint which was filed after conclusion of trial and reserving the matter for orders.

       Findings of the Court :

        A. The Court held that in the given facts, there was a clear lack of ‘due diligence’ and the mistake committed certainly did not come within the preview of a typographical error. The term typographical error is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error could not be entertained in this regard since the situation was of lack of due diligence wherein such amendment is impliedly barred under the Code.

        B. It was further held that claim of typographical error/mistake is baseless and Could not be accepted. In fact, had the person who prepared the plaint, signed and verified the plaint showed some attention, this omission could have been noticed and rectified there itself. In such circumstances, it could not be construed that due diligence was adhered to and in any event, omission of mandatory requirement running into 3 to 4 sentences could not be a typographical error as claimed by the plaintiffs. All these aspects had been rightly considered and concluded by the trial court and the High Court had committed an error in accepting the explanation that it was a typographical error to mention and it was an accidental slip. Impugned order of High Court set aside. Appeal was allowed