Amendments to pleadings after trial commencement require due diligence and are not a matter of right; the High Court's supervisory jurisdiction is limited to correcting grave errors.

JUDGMENT :

Bipin Chander Negi, J.

By way of the present petition, a challenge has been laid to impugned order dated 12.5. 2023 (Annexure P-1) whereby an application filed under Order 6 Rule 17 CPC on behalf of the present petitioner/defendant No.3 has been rejected by the trial Court.

2. Heard counsel for the parties Perused the pleadings and documents appended with the petition.

3. The application filed seeking amendment in the written statement by the petitioner/defendant No.3 had been filed at the stage, when the matter was fixed for arguments.

4. The entire object of the amendment to Order 6 Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement to 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.

5. Amendment cannot be claimed as a matter of right. The proviso to Order 6 Rule 17 virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced. After the commencement of trial, an application for amendment can only be allowed once the Court comes to the conclusion that inspite of due diligence, the parties could not have raised the matter before the commencement of the trial. In view of the proviso to Order 6 Rule 17, the absolute discretion to allow amendment, at any stage, therefore stands curtailed. In this regard, a reference can be made to (2019) 4 SCC 332 titled as M. Revanna vs. Anjanamma (dead) by legal representatives and others.

6. 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. 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 this respect, a reference can be made to (2012) 2 SCC 300 titled as J. Samuel and others vs. Gattu Mahesh and others.

7. In the application filled seeking amendment of the written statement, it has been categorically averred on behalf of the petitioner/defendant No.3 that the plea now sought to be incorporated had been brought to the notice of the counsel at the time of preparing of the written statement. However, due to inadvertence, the same could not be incorporated. The written statement is prepared based on the inputs given by the party. The same is prepared by the counsel. Before filing in Court, the same is read both by the counsels and the party concerned. Both the counsels and the party must engage in due diligence to determine that the representations made in the written statement are factually accurate and sufficient.

8. In the case at hand, it is only after a protracted trial after the filing of the written statement by defendant No.3/petitioner that application for amendment was filed at the stage of final hearing/arguments. Thereby showing a complete lack of due diligence on the part of all concerned insofar as petitioner/defendant No.3 is concerned.

9. The present petition has been filed under Article 227 of the Constitution of India. Article 227 of the Constitution reads as under:-

“227. Power of superintendence over all courts by the High Court

(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction.

(2) Without prejudice to the generality of the foregoing provisions, the High Court may—

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) prescribe forms in which books, entr