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Dr. Arijit Pasayat & P. Sathasivam
Chander Kanta Bansal - PETITIONER
Verses
Rajinder Singh Anand - RESPONDENT
CIVIL APPEAL NO. 1893 OF 2008
(Arising out of SLP (C) No. 6892 OF 2007)
Decided On: 11/03/2008
Civil Procedure Code , 1908 - Order VI - Rule 17 - Section 151 - Appellant and respondent, being members of Adarsh Bhawan House Building Cooperative Society, Delhi were jointly allotted a plot bearing Punjabi Bagh Extension, New Delhi admeasuring 426 sq - yds - vide perpetual lease deed - After allotment, plot was partitioned with mutual consent of parties - front portion was allotted to appellant and back portion was allotted to respondent - Appellant raised construction and completed same - Respondent also started raising construction on back portion and completed same - Both parties were in use and occupation of their respective portions of property after respective construction – Held , Keeping above broad principles in mind, let us ascertain whether defendant has justiciable cause to file an application praying for amendment of a written statement for bringing an agreement - Court have already referred to fact that plaintiff had approached court seeking a decree for mandatory injunction as early - Court also refer to fact that within a short duration itself, defendant has filed a written statement - Absolutely, there is no whisper about prior partition agreement - No doubt, in application for amendment, it was stated that her son who is a Chartered Accountant all along was looking after this suit and he died - It is also available from very same application that apart from her first son, defendant has another son - Admittedly, son who looking after suit was none else than a Chartered Accountant - In such circumstances, if alleged agreement between plaintiff and defendant was in existence nothing prevented her son, Chartered Accountant, to bring it to notice of her counsel and refer it in written statement filed - It is relevant to mention that in reply, plaintiff has specifically denied same and asserted that alleged agreement/partition deed is a forged document and based on same, proposed amendment cannot be allowed - It is also not in dispute and best known to both parties suit which is of came to be taken up for trial only and admittedly on date of filing of petition for amendment, trial was on verge of completion - It was brought to our notice that both sides have closed their evidence and completed their argument, but only at this stage defendant filed said application for amendment of her written statement - As discussed above, though first makes it clear that amendment of pleadings is permitted at any stage of proceeding, proviso imposes certain restrictions - It makes it clear that after commencement of trial, no application for amendment shall be allowed - However, if it is established that in spite of due diligence party could not have raised matter before commencement of trial depending on circumstances, court is free to order such application - words "due diligence" has not been defined in Code - According to Oxford Dictionary word "diligence" means careful and persistent application or effort - "Diligent" means careful and steady in application to ones work and duties, showing care and effort - As per Blacks Law Dictionary "diligence" means a continual effort to accomplish something, care; caution; attention and care required from a person in a given situation - "Due diligence" means diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation - According to Words and Phrases by Drain-Dyspned "due diligence", in law, means doing everything reasonable, not everything possible - "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in conduct of his own affairs - It is clear that unless party takes prompt steps, mere action cannot be accepted and file a petition after commencement of trial - As mentioned earlier, in case on hand, application itself came to be filed only after 18 years and till death of her first son Chartered Accountant, had not taken any step about so-called agreement - Even after his death in year 1998, petition was filed only in 2004 - explanation offered by defendant cannot be accepted since she did not mention anything when she was examined as witness – Appeal dismissed
JUDGMENT
P. Sathasivam, J.
1) Leave granted.
2) This appeal is directed against the order dated 22.11.2006 passed by the learned single Judge of the High Court of Delhi in C.M. (Main) No. 136 of 2005 whereby the High Court allowed the petition filed by the respondent herein.
3) Brief facts: The appellant and the respondent, being members of Adarsh Bhawan House Building Cooperative Society, Delhi were jointly allotted a plot bearing No. 13/20, Punjabi Bagh Extension, New Delhi admeasuring 426 sq. yds. vide perpetual lease deed dated 12.05.1981. After the allotment, the plot was partitioned with the mutual consent of the parties. The front portion was allotted to the appellant and the back portion was allotted to the respondent. The appellant raised construction in the year 1983 and completed the same in the year 1984. The respondent also started raising the construction on the back portion and completed the same in the year 1985. Both the parties were in use and occupation of their respective portions of the property after the respective construction.
In the year 1986, the respondent herein filed a suit for mandatory injunction being Suit No. 261 of 1986 alleging that the drive way, which is 10' wide from gate facing 30' road upto the road facing 15' vide service lane at the back, has been encroached upon by the appellant and the appellant is not permitting him to use the drive way. Written statement was filed and the witnesses were examined. On 12.5.2004, the appellant herein filed an application under Order VI Rule 17 read with Section 151 CPC for amendment of written statement and sought the permission of the Court to file a written agreement executed between the parties on 10.9.1982. The respondent herein filed a reply to the application denying the execution of the agreement and claimed that the same is forged and fabricated document. The trial Court, after hearing the arguments, allowed the amendment application on 18.11.2004. Against that order, the respondent herein filed a C.M.(Main) No. 136 of 2005 before the High Court of Delhi. By order dated 22.11.2006, the High Court allowed the petition and set aside the order passed by the trial Court on 18.11.2004 in the amendment application. Aggrieved by the said order, the appellant preferred the present appeal by way of special leave before this Court.
4) Heard Mr. Ranjit Kumar, learned senior counsel appearing for the appellant and Mr. Altaf Ahmed, learned senior counsel appearing for the respondent.
5) The respondent herein (plaintiff) filed a suit No. 261 of 1986 on the file of Senior Sub-Judge, Delhi praying a decree for mandatory injunction against the defendant (appellant- herein) to remove all obstructions at point "X" and lock at point "Y" in the site plan of the property No. 13/20, Punjabi Bagh Extn. New Delhi and also not to put the lock at main gate of the property. In the same prayer, the plaintiff has prayed that the defendant may further be directed not to obstruct the plaintiff, his family members or relations from using the common drive way from point "Y" to "Z" in the site plan. The said suit was filed on 23.05.1986, the defendant filed a written statement even in the year 1986 itself. While so, on 12.05.2004, the defendant filed an application for amendment of written statement under Order VI Rule 17 read with Section 151 CPC. The main reason for seeking the amendment in the written statement is that the defendant is the house wife and earlier was assisted by his son, namely, Sunit Gupta, who was a Chartered Accountant. He died at the young age i.e. in 1998. According to the defendant, he was following the litigation and the document/agreement pertaining to the parties was in his custody. Only her another son, namely, Navneet Agrawal searched the papers/documents of his brother Sunit Gup
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