IMPORTANT POINT
Amendment of plaint – Putting new facts on record due to engagement/change of new Counsel, fault on part of Counsel or any other reason attributed to Counsel cannot be ground for filing of amendment application.

JUDGMENT

Neeraj Tiwari, J.—Mr. Narendra Mohan, Advocate has filed Vakalatnama on behalf of opposite party, which is taken on record.

2. Heard Sri Manish Tandon, leaned counsel for the revisionist and Sri Narendra Mohan, learned counsel for the opposite party.

3. Present revision has been filed for challenging the order dated 27.3.2023 passed by the Additional District Judge, Court No.13, Kanpur Nagar in S.C.C. Suit No. 44 of 2017.

4. 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.

5. Learned counsel for the revisionist submitted that earlier plaintiff-opposite party has instituted the SCC Suit No. 44 of 2017 upon which written submission has been filed. Thereafter, point of determination has also been framed. He next submitted that both the parties i.e. plaintiff and defendant have filed their witnesses through affidavit and case is fixed for final hearing. At the time of final argument, amendment application was filed under Order VI Rule 17 of CPC read with 151 IPC only on the ground of change of new counsel and after engagement of new counsel, it was found that certain relevant facts was not taken into consideration. He also submitted that since beginning, it is the case of respondent-plaintiff that provision of U.P. Act No. 13 of 1972 shall not be applicable as rent of building in question is more than 2,000/-. Now on facts, respondent-plaintiff is coming to the fact that building is newly constructed, therefore, U.P. Act No.13 of 1972 would not be applicable. He firmly submitted that it is pure question of fact and plaintiff respondent has full knowledge about the same since the date of filing of suit, therefore, at the stage of final argument without explanation of due diligence, such amendment application may not be allowed. He further submitted that ground so taken about the change of new counsel is not acceptable, therefore, order is bad and liable to be set aside. In support of his contention, he has placed reliance upon the judgment of this Court in the matter of Hari Shanker and 5 others vs. Bhagwati Prasad Mishra reported in 2014 (0) Supreme (All) 3127 and Shri Firoz Uddin and 4 others vs. Shri Anwar Uddin passed in Matters Under Article 227 No. 5213 of 2013 decided on 8.5.2023.

6. Mr. Krishna Mohan, learned counsel for the opposite party submitted as earlier counsel has not been pointed out the relevant fact only after engagement of new counsel, he found such relevant facts, therefore, he has filed amendment application at this stage, therefore, it cannot be dismissed on the ground of due diligence.

7. I have considered the rival submissions advanced by the learned counsel for the parties and perused the Order 6 Rule 17 of CPC as well as impugned order. In the application filed under Order 6 Rule 17 of CPC, the only ground taken is that after engagement of new counsel, he has pointed out certain relevant facts, which was not taken into consideration except this nothing has been stated in the amendment application.

8. To appreciate the controversy, Order VI Rule 17 of CPC is being quoted hereinbelow;

“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 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.”

9. Order VI Rule 17 of CPC clearly provides that in case of amendment after commencement of trial, due diligence is required to be seen, but in the present case except the change of counsel, nothing has been stated. About the change of couns