CHANDER KANTA BANSALversusRAJINDER SINGH ANAND

                         [2008] 4 S.C.R. 748                           •
A                   CHANDER KANTA BANSAL                               j

                                   v.
                     RAJINDER SINGH ANAND
                  (Civil Appeal No. 1893 of 2008)
                          MARCH 11, 2008
B
       [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

         Code of Civil Procedure, 1908 - Or. 6, r. 17:
         Amendment of pleadings, after commencement of trial
c - Scope - Suit for right of passage between two portions of the
  same property - Application of defendant for amendment of.
  written statement 18 years after filing of the suit - Held: Could
  not be allowed, .as the defendant .failed to substantiate the                   '-
  inordinate delay in filing the application, that too after closing
D of evidence and arguments - Explanation offered by
  defendant not shown to be bonafide and cannot be accepted
  - Delayllaches.                                                          ....
         Words and Phrases - "Due diligence" - Meaning of
E     . Appellant and Respondent were jointly allotted a
  House Building Cooperative Society plot. The plot was
  partitioned with the mutual consent of the parties. The
  front portion was allotted to Appellant while the back
  portion was allotted to Respondent. Both parties raised
F construction on their respective portions and were in use
  and occupation of the same. In 1986, Respondent filed
  suit for right of passage alleging that Appellant had
  encroached upon the common driveway. Written
  statement was filed by the Appellant in 1986 itself and the
G witnesses were examined.
         In 2004, Appellant filed application under Order VI
    Rule 17 rlw Section 151 CPC for amendment of written
    statement seeking permission of the Court to file a written             ~


    agreement allegedly executed between the parties in 1982.
H                                748
     ,,      CHANDER KANTA BANSAL v. RAJINDER SINGH              749
                            ANAND

          She pleaded that she was a house wife and her Chartered A
          Accountant son, who was following the litigation, had died
          in 1998; that the alleged agreement was in custody of the
          said deceased son, which, after his death, was located
          by her other son and that since the said agreement has a
          material bearing on the dispute between the parties, her s
          application for amendment of written statement should
          be allowed. Respondent filed reply, denying execution of
)-        the alleged agreement o( 1982. He contended that the
          application for amendment was filed more than 18 years
          after filing of the suit with a view to frustrate his claim; c
          that after the final arguments, when the defendant realized
          that she was going to lose her case, she changed her
          stance by filing the application for amendment; and that
          in any event the alleged agreement of 1982 was a forged
          and fabricated document, hence, on basis of such D
          document, the proposed amendment could not be
          allowed. Trial Court allowed the amendment application,
          permitting the defendant-appellant to incorporate the
          proposed amendments in the written statement on
          payment of cost of Rs.3000/-. High Court set aside the
          order passed by Trial Court.                                 E
               The question which arose for consideration in the
          present appeal is whether the application of defendant-
          appellant under Order VI Rule 17 for amendment of written
          statement was bona fide and sustainable.                     F
               Dismissing the appeal, the Court
               HELD:1.1. Rule 17, Order VI was omitted by the Code
          of Civil Procedure (Amendment) Act, 1999. However,
          before the enforcement of the Code of Civil Procedure G
          (Amendment) Act, 1999, the original r.ule was substituted
          and restored with an additional proviso. The proviso limits
          the power to allow amendment after the commencement
          of trial but grants discretion to the court to allow
          amendment if it feels that the party could not have raised
                                                                       H
                                                                   ~I
   750      SUPREME COURT REPORTS                [2008] 4 S.C.R.   y
A the matter before the commencement of trial inspite of due
                                                          •         .!
  diligence. The new proviso lays down that no application
  for amendment shall be allowed after the commencement
  of trial, unless the court comes to the conclusion that
  inspite of due diligence, the party could not have raised
B the matter before the commencement of trial. But whether
  a party has acted with due diligence or not would depend
  upon the facts and circumstances of each case. This
  would, to some extent, limit the scope of amendment to
  pleadings, but would still vest enough powers in Courts
c to deal with the unforeseen situations whenever they
  arise. [Paras 8, 9] [755-D, G; 756-A, E, F]
        1.2. Though first part of Rule 17 of Order VI makes it
  clear that amendment of pleadings is permitted at any
  stage of the proceeding, the proviso imposes certain
D restrictions. It makes it clear that after the commencement
  of trial, no application for amendment shall be allowed.
  However, if it is established that inspite of "due diligence"
  the party could not have raised the matter before the
  commencement of trial depending on the circumstances,
E the court is free to order such application. The words "due
  diligence" has not been defined in the Code. "Due diligence"
  means reasonable diligence; it means such diligence as
  a prudent man would exercise in the conduct of his own
  affairs. It is clear that unless the party takes prompt steps,
F mere action cannot be accepted. [Para 11] [758-A-F]
       1.3. In the present case, the plaintiff had approached
  the Court seeking a decree for mandatory injunction as
  early as on 1986. Within a short duration i.e. in 1986 itself,
  the defendant filed a written statement. Absolutely, there
G was no whisper about the prior partition agreement dated
  10-09-1982. The son, who was looking after the suit, was
  none else than a Chartered Accountant. In such
  circumstances, if the alleged agreement dated 10-09-1982
  between the plaintiff and defendant was in existence,
H nothing prevented the son of the defendant, a Chartered
•      CHANDER KANTA BANSAL v. RAJINDER SINGH                751
                      ANAND

    Accountant, to bring it to the notice of her counsel and A
    refer it in the written statement filed in the year 1986.
    Noticeably, in the reply, the plaintiff has specifically denied
    the same and asserted that the alleged agreement/partition
    deed ·dated 10-09-1982 is a forged document and based
    on the same, the proposed amendment cannot be B
    allowed. Also, the suit came to be taken up for trial only in
    2004 and admittedly on the date of filing of the petition for
    amendment, the trial was on the verge of completion. Both
    sides have closed their evidence and completed their
    argument, but only at this stage the defendant filed the C
    said application for amendment of her written statement.
    The application itself came to be filed only after 18 years
    and till the death of her first son, Chartered Accountant,
    had not taken any step about the so-called agreement.
    Even after his death in the year 1998, the petition was filed
                                                                    0
    only in 2004. The explanation offered by the defendant
    cannot be accepted since she did not mention anything
    when she was examined as witness. [Para 11] [757-8-H;
    758-F, G]
         1.4. Delay and laches on the part of the parties to the   E
    proceedings would also be a relevant factor for allowing
    or disallowing an application for amendment of the
    pleadings. [Para 12] [758-H; 759-A]
          1.5. The suit filed in the year 1986 was for a right of
    passage between two portions of the same property, F
    which dragged for a period of 21 years. In spite of long
    delay, if acceptable material/materials placed before the
    Court show that the delay was beyond their control or
    diligence, it would be possible for the Court to consider
    the same by compensating the other side by awarding G
    cost. When appellant gave evidence as DW1, there was
    no whisper about the written document/partition between
    the parties. On the other hand, she asserted that partition
    was oral. Now by filing the said application, she wants to
    retract what she pleaded in the written statement, H
    752       SUPREME COURT REPORTS                  [2008) 4 S.C.R.
                                                                       '1-.
A undoubtedly it would deprive the claim of the plaintiff. Also
  she failed to substantiate inordinate delay in filing the
  application that too after closing of evidence and
  arguments. All these aspects have been considered by
  the High Court. There is no ground for interference· in the
B order of the High Court, on the other hand, the same is
  entirely acceptable. [Para 13] [759-A, B, C, D]
         Union of India v. Pramod Gupta (dead) by LRs and Ors.
    (2005) 12 sec 1 - relied on.                                        -1


c        Oxford Dictionary (Edition 2006); Black's Law Dictibnary
    (Eighth Edition) and Words and Phrases by Drain-Dyspnea
    (Permanent Edition .13A) - referred to.
         CIVIL APPELLATE JURISDICTION : Civil Appeal
    No. 1893 of 2008
D
         From the Judgment and Order dated 22.11.2006 of the
    High Court of Delhi at New Delhi in C.M. (Main) No. 136/2005
         Ranjit Kumar, S.N. Gupta, Vikrant Bhardwaj, B.B. Singh
    and Arvind Kumar Gupta for the Appellant.
E
        Altaf Ahmad, Nitin Bhardwaj and Garima Prashad for the
    Respondent.
          The Judgment of the Court was deltvered by
          P. SATHASIVAM, J. 1) Leave granted.
F
          2) This appeal is directed against the order dated            'r
    ·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.
G         3) Brief facts:
       The appellant and the respondent, being members of
  Adarsh· Bhawan House Building Cooperative Society, Delhi
  were jointly allottep a plot bearing· No. 13/20, Punjabi Bagh
H Extension, New Delhi admeasuring 426 sq. yds. vide perpetual
•         CHANDER KANTA BANSAL v. RAJINDER SINGH                     753
                 ANAND [P. SATHASIVAM, J.]

 ,     lease deed dated 12.05.1981. After the allotment, the plot was A
       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 B
       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 1O' c
       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
                                                                            D
       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, E
       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 F
       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
                                                                       G
       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)   H
    754       SUPREME COURT REPORTS                     {2008] 4 S.C.R.


A   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
B   or relations from using_ the common drive way from p9int "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         -f
    amendment of written statement under Order VI Rule 17 read
    with Section 151 CPC. The main reason for seeking the
c   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
0   parties was in his custody. Only her another son, namely,
    NavneetAgrawal searched the papers/documents of his brother
    Su nit Gupta and located an ·agreement dated 10.09.1982. Since          ~

    the said agreement is material one and tlas a bearing on the
    dispute between the parties and the execution of the same is
E   admitted by the plaintiff, her application may be allowed by
    permitting the defendant to raise the plea of the agreement
    dated 10.09.1982 is'her written statement and mark the same
    as a document of the defendant.

        6) The said application was resisted by the plaintiff by filing
F an objection. It was stated that the suit was filed by the plaintiff
                                                                            y
  in the month of May, 1986 and after more than 18 years, the
  present application has been moved with a view to frustrate the
  claim of the plaintiff. The trial has completed and after the final
  arguments when the defendant came to know that she is going
G to lose her case she is changing her stance by filing the present
  application for amendment in the written statement. It was further
  stated that the alleged agreement/partition dated 10.09.1982,
  which itself is not admissible in the eye of law wince it is a forged
  document and on the basis of the said document, the proposed
H amendment cannot be allowed.
          CHANDER KANTA BANSAL v. RAJINDER SINGH                       755
                 ANAND [P. SATHASIVAM, J.]

            7) The Civil Judge, based on the claim of both the parties,       A
      particularly accepting the explanation offered by the defendant
      allowed the said application and permitted the defendant to
      incorporate the proposed amendments in the written statement
      on payment of cost of Rs.3,000/-. Questioning the said order,
      the plaintiff has filed a C.M. (Main) No. 136 of 2005 before the        B
      High Court of Delhi. On going through the entire materials and
      details, namely, filing of the suit in the year 1986, the application
      for amendment of written statement filed only in 1994 and of the
      fact that nothing has been stated in the written statement as
      well as in her evidence by the impugned or.der set aside the            c
      o.rder of the trial Court and rejected the application filed by the
      defendant seeking to amend the written statement. Aggrieved
      by the said order of the High Court, the defendant has filed the
      above appeal by way of special leave.
           8) In order to find out whether the application of the             D
      defendant under Order VI Rule 17 for amendment of written
...   statement is bonafide and sustainable at this stage or not, it is
      useful to refer to the relevant provisions of CPC. Order 6 Rule
      17 reads thus:
           "17. Amendment of pleadings.- The Court may at any                 E
           stage of the proceedings allow either party to alter or
           amend his pleadings 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:                 F
           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 G
           commencement of trial."
           This rule was omitted by the Code of Civil Procedure
      (Amendment) Act, 1999. However, before the enforcement of
      the Code of Civil Procedure (Amendment) Act, 1999, the original
      rule was substituted and restored with an additional proviso.           H
    756       SUPREME· COURT REPORTS                   [2008] 4 S.C.R.


A The pro\1iso ~imits the ·power to allow amendment after the
  cemmencement of trial but grants discretion to the court to allow
  amendment if it feels that the party could not have raised the
  matter before the commencement of trial in spite of due
  diligence. It is true that the power to al.low amendment should
B be liberally exercised. The liberal principles which guide the
  exercise of discretion in allowing the amendment are that
  multiplicity of proceedings should be avoided, that amendments
  which do not totally alter the character of an action should be         1
  granted, while care should be take_n to see that injustice and
c prejudice of an irremediable character are not inflicted upon
  the opposite party under pretence of amendment.
         9) With a view to shorten the litigation and speed up the
  trial of cases Rule 17 was omitted by amending Act 46 of 1999.
  This rule had been on the statute for ages and there was hardly
D a suit or proceeding where this provision had not been used.
  That was the reason it evoked much controversy leading to
  protest ali over the country. Thereafter, the rule was restored in      ....
  its original form by amending Act 22 of 2002 with a rider in the
  shape of the proviso limiting the power of amendment to some
E extent.   The new proviso lays down that no application for
  amendment sha.11 be allowed after the commencement of trial,
  unless the court comes to the conclusion that inspite of due
  diligence, the party could not have raised the matter before the
  commencement of trial. But whether a party has acted with due
F diligence or not would depend upon the facts and circumstances
  of each case. This would, to some extent, limit the scope of             '(
  amendment to pleadings, but would still vest enough powers in
  courts to deal with the unforeseen situations whenever they arise.
         10) The entire object of the said amendment is to stall filing
G of ap.plications for amending a pleading subsequent to the
   commencement of trial, to avoid surprises and the parties had
 . sufficient knowledge of the others case. It also helps in checking
   the delays in filing the applications. Once, the trial commences
   on the known pleas, it will be very difficult for any side to
H reconcile. In spite of the same, an exception is made in the newly             r-
                                                                                 ;
e           CHANDER KANTA BANSAL v. RAJINDER SINGH
                   ANAND [P. SATHASIVAM, J.]
                                                                         757

         inserted proviso where it is shown that in spite of due diligence,     A
         he could not raise a plea, it is for the court to consider the same.
         Therefore, it is not a complete bar nor shuts out entertaining of
         any later application. As stated earlier, the reason for adding
       · proviso is to curtail delay and expedite hearing of cases.
               11) Keeping the above broad principles in mind, let us B
        ascertain whether the defendant has justiciable cause to file an
        application praying for amendment of a written statement for
        bringing an agreement dated 10.09.1982. We have already
 \
        referred to the fact that the plaintiff had approached the court
        seeking a decree for mandatory injunction as early as on 1986. c
        We also refer to the fact that within a short duration i.e. in 1986
        itself, the defendant has filed a written statement. Absolutely,
        there is no whisper about the prior partition agreement dated
        10.09.1982. No doubt, in the application for amendment, it was
        stated that her son who is a Chartered Accountant all along was [
        looking after this suit and he died in the year 1998. It is also
        available from the very same application that apart from her
....   first son, namely, Sunit Gupta, defendant has another son by
        name Navneet Agarwal. Admittedly, the son who looking after
       the suit was none else than a Chartered Accountant. In such E
        circumstances, if the alleged agreement dated 10.09.1982
        between the plaintiff and defendant was in existence nothing
        prevented her son, Chartered Accountant, to bring it to the notice
       of her counsel and refer it in the written statement filed in the
       year 1986. It is relevant to mention that in the reply, the plaintiff F
        has specifically denied the same and asserted that the alleged
1      agreement/partition deed dated 10.09.1982 is a forged
       document and based on the same, the proposed amendment
       cannot be allowed. It is also not in dispute and best known to
       both parties the suit which is of the year 1986 came to be taken
                                                                             G
       up for trial only in 2004 and admittedly on the date of filing of the
       petition for amendment, the trial was on the 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
       the defendant filed the said application for amendment of her
                                                                                H
    758       SUPREME COURT REPORTS                     [2008] 4 S.C.R.     e       .._

                                                                                    r-
                                                                                    I-
A   written statement. As discussed above, though first part of Rule                ~·


    17 makes it clear that amendment of pleadings is permitted at
    any stage of the proceeding, the proviso imposes certain                •
    restrictions. It makes it clear that after the commencement of
    trial, no application for amendment shall be allowed. However,
B   if it is established that in spite of "due diligence" the party could
    not have raised the matter before the commencement of trial
    depending on the circumstances, the court is free to order such
    application. The words "due diligence" has not been defined in
    the Code. According to Oxford Dictionary (Edition 2006), the
                                                                            1,
c   word "diligence" means careful and persistent application or
    effort. "Diligenf' means careful and steady in application to one's
    work and duties, showing care and effort. As per Black's Law
    Dictionary (Eighth Edition), "diligence" means a continual effort
    to accomplish something, care; caution; the attention and care
    required from a person in a given situation. "Due diligence"
D
    means the 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-Dyspnea (Permanent Edition 13A) "due diligence",               ~



    in law; means doing everything reasonable, not everything
E   possible. "Due diligence" means reasonable diligence; it means
    such diligence as a prudent man would exercise in the conduct
    of his own affairs. It is clear that unless the party takes prompt
    steps, mere action cannot be accepted and file a petition after
    the commencement of trial. As mentioned earlier, in the case
F   on hand, the application itself came to be filed only after 18
    years and till the death of her first son Sunit Gupta, Chartered
    Ac"ountant, had not taken any step about the so-called                      y
    agreement. Even after his death in the year 1998, the petition
    was filed only in 2004. The explanation offered by the defendant
G   cannot be accepted since she did not mention anything when
                                                                                     ,\
    she was examined as witness.
         12) As rightly referred to by the High Court in Union of
    India vs. Pramod Gupta (dead) by LRs and Others, (2005)
    12 SCC 1, this Court cautioned that delay and !aches on the
H

                                                                                     f




                                                                                     l
•          CHANDER KANTA BANSAL v. RAJINDER SiNGH
                  ANAND [P. SATHASIVAM. J}
                                                                     759

        part of the parties to the proceedings would also be a relevant    I~
        factor for allowing or disallowing an application for amendment
        of the pleadings.
               13) As obseNed earlier, the suit filed in the year 1986 is
        for a right of passage between two portions of the same property
        dragged for a period of 21 years. In spite of long delay, if 8
        acceptable material/materials placed before the court shovv that
        the delay was beyond their control or diligence, it 'Nould be
        possible for the court to consider the same by compensating
        the other side by awarding cost. As pointed out earlier, when
        she gave evidence as D.W.1, there was no whisper about the C
        written document/partition between the parties. On the other
        hand, she asserted that partition was oral. Now by filing the said
        application, she wants to retract what she pleaded in the written
        statement, undoubtedly it would deprive the claim of the plaintiff.
        We are also satisfied that she failed to substantiate inordinate D
        delay in filing the application that too after closing of evidence
        and arguments. All these aspects have been considered by the
.....   High Court. We do not find any ground for intarference in the
        order of the High Court, on the other hand, we are in entire
        agreement with the same.                                            E
              14) In the light of the above discussion, the appeal fails
        and the same is dismissed. No costs. It is made clear that we
        have not expressed anything on the stand taken by both parties
        in the suit and it is for the trial Court to dispose of the same
        uninfluenced by any of the obseNation made above within a          F
        period of three months from the date of receipt of copy of this
        judgment.
        B.B.B.                                      Appeal dismissed.