M/s. Haka International and Another vs Addl. District and Sessions Judge No. 2 and Another

Raghvendra S. Chauhan, J.—The defendants-petitioners are aggrieved by the order dated 9.1.2013 passed by the Additional District & Sessions Judge No. 2, Jaipur Metropolitan whereby the learned Judge has rejected the application filed by the petitioners under Order 6 Rule 17 CPC for amending the reply to the suit. The brief facts of the case are that the plaintiff-respondent No. 2, the Bank of Rajasthan Ltd., had filed a suit for recovery of a sum of Rs. 2,19,818/- against the petitioners before the Additional District & Sessions Judge No. 2, Jaipur Metropolitan. At the time of final arguments of the suit, the petitioners have filed an application under Order 6 Rule 17 CPC for wanting to amend their reply to the suit. However, by order dated 9.1.2013, the learned Judge has rejected the said application. Hence, this petition before this court.

Mr. Ravindra Pal, the learned counsel for the petitioners, has contended that since the amendments were essential for establishing the case of the petitioners, the said amendment should have been allowed by the learned Judge. Moreover, the said amendment was crucial in order to ensure justice to the petitioners. Therefore, by rejecting the said application, the learned Judge has caused an injustice to the petitioners.

Heard the learned counsel for the petitioners and perused the impugned order.

A bare perusal of the impugned order clearly reveals that the petitioners wanted to incorporate Condition Nos. 4 and 14 contained in the agreement entered between the Bank and the petitioners. According to these conditions, it was the responsibility of the Bank to get the goods insured with an insurance company. Moreover, in case any damage were caused to the goods, it was the duty of the Bank to recover the compensation from the insurance company.

A bare perusal of the impugned order clearly reveals that the learned Judge has clearly observed that these two conditions have not only been mentioned in detail in Para Nos. 9, 12 and 13 of the written statement, but even a copy of the agreement has been brought on record. In fact, the issue Nos. 4 and 6 were framed keeping in mind the stand taken by the petitioners in their written statement. Thus, to bring these conditions by way of amendment into the written statement would only be redundant and would not serve any fruitful purpose.

Moreover, according to the learned Judge, the suit has been pending since 2008 and was at the stage of final arguments when the present application was moved. Hence, according to the learned Judge, moving of the present application was merely a delay tactic adopted by the petitioners.

In the case of J. Samuel and Others Vs. Gattu Mahesh and Others, the Hon''ble Supreme Court has opined as under:-

The primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The Court''s discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. However to balance the interests of the parties in pursuit of doing justice, the proviso has been added which clearly states 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.

(emphasis supplied)

Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term ''Due diligence'' is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial.

A party requesting a relief stemming out of a claim is required to exercise due diligence and is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party''s constructive knowledge, claim and is very critical to the outcome of the suit.

Therefore, before an amendment can be permitted, three tests have to be met; firstly, whether the proposed amendment would throw any light on the controversy involved in the dispute; secondly, whether the amendment is being made with due diligence or not; lastly, whether it would lead to justice being done to both the parties. Since the proposed amendment with regard to incorporating condition Nos. 4 and 14 is redundant as these conditions have already been mentioned in the written statement in the particular paragraphs, mentioned above, obviously, this amendment would not throw any new light on the controversy involved in the matter. Moreover, if the petitioners wanted to amend the written statement, they had ample opportunity to do so from 2008 till 2012 when the last opportunity was given to the petitioners for submitting their evidence by order dated 17.11.2012. Even after knowing the existence of these conditions in the agreement for four long years, the petitioners did not take any step for moving an application under Order 6 Rule 17 CPC. Thus, obviously, the petitioners have not been duly diligent.

Lastly, since these conditions are readily available in the agreement which is already on record, the amendment would not lead anywhere. Thus, it would not even lead to justice being done to both the parties. Since the amendment application does not pass any of the three tests, mentioned above, the learned Judge was certainly justified in dismissing the application under Order 6 Rule 17 CPC. For the reasons stated above, this court does not find any illegality or perversity in the impugned order dated 9.1.2013. This petition being devoid of merits is, hereby, dismissed. The stay application is also dismissed.