PUSHPENDRA SINGH BHATI,J. - (1.) The brief facts as noticed by this Court are that the plaintiff-respondent no.2 filed a suit for cancellation of patta, injunction and damages alleging inter alia that the plaintiff had sold a land measuring 14 Bigha out of 20 Bigha 10 Biswa land situated in Khasra No.174/73, Village Chopasni Jagir, Tehsil and District Jodhpur to Shri Surajmal Garg through registered saledeed dated 27.11.1996. The plaintiff-respondent no.2 alleged that while the land was sold to one Shri Surajmal Garg, the remaining land measuring 6 Bigha and 10 Biswa remains with the plaintiff-respondent no.2 himself. The 14 Bigha land sold was said to be in possession of the plaintiff-respondent no.2. When defendant-petitioner threatened him by showing the 'patta' which has been issued in favour of the petitioner, then the plaintiff filed the present suit. Written statement was filed by the defendant-petitioner. The issues were framed and affidavit of examination-in-chief was filed by the plaintiff-respondent. While the case was going on the affidavit having been filed, the plaintiff-respondent no.2 moved an application under Order 6 Rule 17 CPC for amendment of the plaint on the ground that certain material facts and relevant facts came to his knowledge subsequently in recent times and, therefore, even after due diligence those could not be brought to knowledge of court in the pleadings. The application under Order 6 Rule 17 CPC was allowed in favour of the plaintiff respondent no.2 vide order dated 19.3.2016. The plaintiff filed an amended plaint and served a copy of amended plaint upon the petitioner. Thereafter the cost remained unpaid. The petitioner then filed an application seeking that the amended plaint be consigned to Part-D on count of the fact that since cost was neither offered, nor paid nor deposited in the court, therefore, the conditional order is not in existence. The application filed by the petitioner was dismissed by the learned court below on 25.2.2017 while directing the petitioner to receive the cost as per law. Order 6 Rule 17 CPC reads as follows : "17. Amendment of Pleadings.- the Court may at any stage at 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: 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."
(2.) Counsel for the petitioner Shri Om Mehta has argued that the initial order dated 19.3.2016 was not challenged by the petitioner because it did not came into effect as it was a conditional order and since the cost was not paid, therefore, he validly moved an application, which was again dismissed by the learned court below on 25.2.2017 on the ground that the cost can be accepted at any stage. Counsel for the petitioner stated that the amendment has been made without taking into consideration Proviso to Order 6 Rule 17 CPC as the respondent-plaintiff has failed to show due diligence in not submitting the fact in-question at an earlier stage while filing the original suit. Counsel for the petitioner stated that since trial has commenced on filing of an affidavit by the defendant, therefore, the respondent no.2 was required to mandatorily show reason as to why the fact inquestion sought to be brought on record by amendment was not brought on record at an earlier stage. Counsel for the petitioner assailed the impugned order on the ground that the court below has considered it to be a preliminary stage, whereas the trial has already commenced, thus, rigors of Order 6 Rule 7 CPC has come into effect. Counsel for the petitioner stated that a bald and vague statement was made by plaintiff-respondent no.2 that he had come to know about the information in furtherance land 14 Bigha in-question at a subsequent stage which could not have been accepted by the court unless definite and firm stand was taken by the respondent for seeking any indulgence of the court under Order 6 Rule 17 CPC. Counsel for the petitioner has relied upon the judgment rendered in the case of Smt. Sudama Devi v. Commissioner, reported in AIR 1983 SC 653 for the purpose of delay, in which the Hon'ble Apex Court held that rejection of writ petition filed after expiration of 90 days was not called for. Counsel for the petitioner has relied upon the judgment of M/s. Jagath Swapna and Company v. M/s. Church of South India Trust Association, Madras and ors., reported in AIR 2011 AP 81 , whereby the Hon'ble Andhra Pradesh High Court has categorically held that any amendment after commencement of trial cannot be allowed liberally. Counsel for the petitioner has relied upon the judgment of Jaiwant Singh Negi v. Man Mohan Singh and Ors., reported in AIR 2010 Uttarakhand 100 , in which the Hon'ble Uttrakhand High Court has laid down law that after commencement of trial, there is an embargo upon the exercise of powers of the court. Counsel for the petitioner has relied upon the judgment of State of U.P. and Ors. v. Raj Bahadur Singh and Anr. reported in (1998) 8 SCC 685 , whereby the Hon'ble Apex Court has stated that the dismissal of the writ petition on the ground of limitation was not appropriate. Counsel for the petitioner has relied upon the judgment of Ajendraprasadji N. Pande and Anr. v. Swami Keshavprakeshdasji N. and Ors., reported in AIR 2007 SC 806 whereby the Hon'ble Apex Court has laid down the law that the amendment sought after commencement of trial has to undergo the rigors of Proviso to Order 6 Rule 17 CPC. Counsel for the petitioner has relied upon the judgment of this Court in Smt. Meera Ben v. Amritlal and Anr. (S.B. Civil Writ Petition No.1669/2016, decided on 18.2.2015) whereby it has been held that the commencement of trial shall have a considerable impact on tightening scrutiny upon allowing of the application under Order 6 Rule 17 CPC. Counsel for the petitioner has relied upon the judgment of this Court in Smt. Saroj and Ors. v. Prabhu Narain Mathur and Anr. (S.B. Civil First Appeal No.152/2013, decided on 09.2.2014) , in which this Hon'ble Court has held that the requirement of Order 6 Rule 17 power to be exercised after commencement of the trial that inspite of due diligence the plaintiff could not have raised the matter before commencement of the trial. Counsel for the petitioner has relied upon the judgment of this Court in M/s. Indian Oil Corporation Ltd. and Anr. v. Rent Tribunal, Udaipur and Ors. (S.B. Civil Writ Petition No.12469/2015, decided on 25.1.2016) , in which this Hon'ble Court has held that since the petitioner has not indicated a single word regarding compliance of the Proviso of Order 76 Rule 17 and the trial has already commenced, therefore, the amendment could not have been permitted. Counsel for the petitioner has relied upon the judgment of Vidyabai and Ors. v. Padmalatha and Anr., reported in AIR 2009 SC 1433 wherein the Hon'ble Apex Court has laid down law that amendment of pleadings after commencement of trial without confirming to proviso would be a jurisdictional error. Counsel for the petitioner has relied upon the judgment of this Court in Manju Lata Sharma v. Prahlad Tamboli and Ors. (S.B. Civil Writ Petition No.488/2017, decided on 18.1.2018) , in which it has been held that where the plaintiff had the facts already available at the time of filing of the suit required his due diligence before filing the suit and once in his own wisdom, he has chosen to file his suit, then any amendment without showing the cause as to how after due diligence he could not frame the amendment in the suit as being brought by him. Therefore, no case of interference is made out in the dismissal of the application under Order 6 Rule 17 CPC.
(3.) Counsel for the respondent Shri Vikas Balia, however, submitted that the amendment in the suit under Order 6 Rule 17 was allowed way back on 19.3.2016 and the petitioner has consciously not chosen to challenge the same and, therefore, the order dated 19.3.2016 has attained finality. Counsel for the respondent further stated that the order dated 25.2.2017 was only a consequential order whereby the respondents sought cost for order already made earlier and the learned court below has permitted the petitioner to submit cost at this stage in accordance with law. Counsel for the respondent has further shown that the learned court below has recorded that the suit is at a preliminary stage and, therefore, it would not have any impact on either of the parties as if the amendment is allowed, the basic nature of the suit would not change. Counsel for the respondent stated that the categorical stand taken by the respondent while preferring application under Order 6 Rule 17 CPC was that he had recently come to know about the facts mentioned in the amendment application and is, therefore, seeking amendment pertaining to the same land in-question. Counsel for the respondent stated that the dispute was pertaining to demarcation of 14 Bigha land purchased by the petitioner and subsequent knowledge of land left for road being mis-utilized by the petitioner require the respondent to seek such amendment to have a comprehensive jurisdiction. Counsel for the respondent argued that due diligence was shown as the original suit consists of the dispute pertaining to 14 Bigha land and only a subsequent event of said land occupying the road in the same land came to knowledge of respondents, which required him to make such application. Counsel for the respondent has relied upon the judgment of Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors, reported in (2006) 4 SCC 385 , in which, the Hon'ble Apex Court has laid down law that the merits of the amendment sought to be incorporated by way of amendment are not adjudged at the stage of allowing the prayer for amendment and basic parameter for the court was to consider the directory and mandatory part of Order 6 Rule 17 CPC for allowing any amendment that may be necessary for determining controversy between the parties provided it does not cause injustice or prejudice to the other side. Counsel for the respondent has relied upon the judgment of Baldev Singh & Ors. v. Manohar Singh & Anr. reported in (2006) 6 SCC 498 , in which, the Hon'ble Apex Court has laid down law that amendment in the pleadings cannot be permitted if it is altering materially or substituting the cause of action or nature of his claim. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. The precedent law further lays down that in view of Proviso to Order 6 Rule 17 CPC vide powers are conferred and discretion was with the court to allow at any stage of the proceedings. Counsel for the respondent has relied upon the judgment of this Court in Union of India v. Ram Niwas (Civil Revision No.153 of 1982, decided on 05.1.1983) reported in RLW 1983(Raj.) 286 whereby the payment of cost at a subsequent stage was not forbidden. Counsel for the respondent has relied upon the judgment of this Court in L.R.s of Imamudin & Ors. v. Additional Civil Judge (J.D.) No.1 and Prem Kishan reported in RLW 2010(2) Raj. 1370 , whereby this Hon'ble Court has laid down law that after considering all the judgment of Hon'ble Apex Court the amendment was allowed.;