JUDGMENT

Tarlok Singh Chauhan, J. - CMP No. 8793/2017

1. By medium of this application, the applicant has sought an amendment of the plaint on the ground that it gathered knowledge of the fact that the policy dated 6.9.2009 had not been challenged in the suit, reference/observation whereof finds mention in the judgment under challenge passed by the first appellate court while deciding the appeal. It is further averred that the applicant had given complete narration with respect to the matter in controversy to its counsel and being not well conversant with the intricacies/nitty gritty of the pleadings, in good faith, relied on the expertise of its counsel that its case has been properly drafted. However, fact of not challenging the policy dated 6.9.2006 has adversely effected the interest of the plaintiff which has come to its knowledge only after passing of the judgment by the first appellate court. It is further pleaded that the notification dated 6.9.2006 goes to the root of the lis and its impleadment in the pleading before the trial court was necessary to determine the real controversy in issue. The lapse on the part of the learned counsel has prejudiced the interest of the applicant materially and for this lapse the applicant cannot be made to suffer. It is in this background that the applicant intends to add paras 7 (A) and 7 (B) after para 7 of the plaint and in the relief clause para (iii) intends to be added as under:

"7-A. That the instructions/letter/guidelines dated 6.9.2006 and advertisement dated 30.4.2010 issued by the Government of India superseding the earlier instructions/letters vide which the petrol pump was allotted to the applicant and continued till date may be declared to be nonest, void and not applicable qua the applicant as these instructions would have become operative prospectively in view of the clause 22 of the agreement.

7-B. That since the applicant had already applied for approval to carry on the business before the expiry of agreement dated 4.3.2004 and also before the instructions/letter dated 6.9.2006 and the respondents did not pass any order on the application till date, therefore, the applicant/plaintiff has reason to believe that contention of the applicant has been accepted/conceded.

(iii) Declaration to the effect that the instructions/letter dated 6.9.2006 and advertisement dated 30.4.2010 may be declared nonest, void and not applicable qua the rights of the applicant."

2. The respondents have opposed the application by filing reply wherein preliminary objection has been raised that after the amendment of the Code of Civil Procedure, there is a clear mandate against entertaining of the application unless the Court comes to the conclusion that despite due diligence, the party could not raise the matter before the commencement of the trial. The applicant herein has neither pleaded nor proved due diligence and, therefore, the amendment application is liable to be dismissed. It is further averred that the application to challenge the policy has been filed after 11 long years of its formulation on 6.9.2006 and, therefore, the present application is nothing but abuse and misuse of judicial process primarily with the motive to delay the final decision of the matter. It is further averred that even if it is assumed, though not admitted, that the counsel of the applicant had failed to challenge the policy dated 6.9.2006 despite the instructions of the applicant, it would be impossible to believe that the fact came to the attention of the applicant only when the judgment was passed by the first appellate court in 2017. This averment is misleading because the suit was filed before the trial court in the year 2010 and even the trial court had clearly noted in its judgment dated 16.11.2016 that the applicant had not challenged the policy dated 6.9.2006. It has been averred that the application has been filed with ulterior motive of delaying the litigation on one pretext or the other primarily with