The requirement of 'due diligence' for seeking amendment after the commencement of trial and the scope of a party's constructive knowledge.

Ram Surat Ram (Maurya),J.: -

Heard Sri Durga Charan Mukherjee, for the petitioner and Sri Manish Kumar, for respondent-1.

2. The writ petition has been filed for quashing the order dated 09.05.2014, rejecting the amendment application of the petitioner seeking amendment of her written statement.

3. Durgawati (respondent-5) filed an Election Petition (registered as Election Petition No. 1 of 2010) under Section 27 (2) of U.P. Kshetra Panchayat Evam Zila Panchayat Adhiniyam, 1961, challenging the declaration of election result of the petitioner as Member of Zila Panchayat Sultanpur from of Ward No. 1. The petitioner contested the Election Petition and filed her written statement on 21.04.2011. Thereafter, trial of Election Petition was started and evidence of the parties were completed.

4. The petitioner filed an application for amendment of her written statement under Order VI Rule 17 C.P.C., on 03.05.2014. In effect to the proposed amendment, the petitioner wants to (i) add the words "under Order 7 Rule 11 CPC" in paragraph 23-ka of the written statement, (ii) to correct the number of votes mentioned in paragraph 23-ka, (iii) correct the number of votes received by Lakhpati, as mentioned in paragraph 23-ka, and (iv) thereafter, she wants to add paragraph 30-A to the effect that the election petition was not verified according to the provisions of Order 6 Rule 15 CPC and is liable to be dismissed on this ground alone, paragraph 30-B to the effect that the election petition was not verified according to the provisions of Section 81 and 83 of Representation of Peoples Act, 1951 and is liable to be dismissed on this ground alone and paragraph 30-C to the effect that in paragraph 3-ka of the election petition, it has been stated that complaints have been made to the Assistant Election Officer, Ward No. 1, Zila Panchayat, Sultanpur, Observer, Panchayat Election and two letters were made to the Election Commission, Lucknow through fax, but copies of these papers have not been attached along with the election petition, as such, the election petition is liable to be dismissed u/s 83 and 86 of Representation of People Act, 1951. Thus, in all the proposed amendments, the defect in the election petition has been pointed out, which may have been seen by the petitioner and her counsel while preparing the written statement. The Court below by the impugned order dated 09.05.2014 held that evidence of the parties were completed and the case is fixed for final arguments of the parties. There in nothing on record to show that in spite of due diligence, proposed amendments were not noticed earlier. On these findings the amendment application has been rejected. Hence this writ petition has been filed.

5. The counsel for the petitioner submitted that Order VI Rule 17 C.P.C. gives a wide discretion to the Court to permit the parties to amend the pleadings. Relying upon the judgment of Supreme Court in Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N., AIR 2007 SC 806 , he submitted that the proviso will not override the main provision as held in above case that any section should not be so interpreted that part of it becomes otiose and meaningless and very often a proviso itself is read as a substantive provision it has to be given full effect. He further relied upon the judgments of Supreme Court in Shakuntala Devi Vs. Kuntal Kumari, AIR 1969 SC 575 and Davinder Pal Sehgal Vs. Pratap Steel Rolling Mills Pvt. Ltd., (2002) 3 SCC 156 , and judgments of this Court in Phool Chand Vs. DDC and others, 2004 (22) LCD 474 and Krishna Baldeo Versus State of U.P., 2011 (29) LCD 673 in which for the purposes of condonation of delay under Section 5 of Limitation Act, 1963, it has been held that 'sufficient cause' must be construed liberally so as to advance substantial justice. He submitted that the Court below has illegally rejected the amendment application.

6. I have considered the argument of the counsel for the petitioner. Order VI Rule 17 C.P