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Judgment
R.V. Ghuge, J.—Rule. Rule made returnable forthwith by the consent of the parties and heard the learned Advocates for the respective sides, finally.
The petitioners are original defendants in Spl. C.S. No. 159/2008, filed before the Trial Court on 13/11/2008, for claiming damages from the petitioners, who were Police Officers posted at Songir Police station.
The petitioners/defendants filed their written statement on 16/03/2009. In paragraph No.3 of the written statement, it has been specifically contended that the suit deserves to be dismissed for "Non-joinder of necessary parties". It was further stated that the offence registered as Crime No.65/2007, was on the complaint filed by the complainant and statement of witnesses and such persons are required to be arrayed as defendants. Order 27 Rule 5 was specifically invoked and it was contended that the State Government is a necessary and proper party to be added as a respondents. Since the suit did not array the State as well as the complainant and witnesses, it was prayed that the suit be dismissed.
The issues in the said proceedings were cast below Exh.23 on 25/11/2009. The said issues are as under : -
1 Whether the suit is within limitation as per 161(1) of The Bombay Police Act ?
2 Whether the suit is bad for want of notice under section 161(2) of Bombay Police Act ?
3 Whether the suit is bad for non joining necessary parties ?
4 Whether the plaintiff proves that defendant No.1 and 2 intentionally showed him to be involved in serious offence to seek his police custody ?
5 Whether he proves that he is entitled to recover compensation/ damages, if yes, up to what amount and from which defendant ?
6 What order and decree ?
Date : 25/11/2009
sd/ -xxx
Civil Judge Senior Division,
Dhule
Issue No.1 and 2 go to root of the matter, they shall be tried as preliminary issues."
The petitioners, therefore, contend that the respondents / plaintiffs allowed the trial in the suit to proceed in the light of the issues. The recording of the evidence on behalf of all the sides has been completed. The matter was posted for advancing oral submissions and thereafter the suit would have been closed for judgment.
On 17/12/2012, the plaintiffs filed an application under Order 17 Rule 6 of the CPC, 1908, seeking permission to add the State of Maharashtra through the District Collector, Dhule, as a defendant. The petitioners seriously objected to the said application, which did not contain an iota of justification in as much as there was no explanation from the plaintiffs as regards "due diligence" to support the said application. A detailed reply of the petitioners was filed on 29/01/2013. By the impugned order dated 06/07/2013, application Exh.111 was allowed subject to costs of Rs.1,000/ -.
The petitioners submit that the plaintiffs had neither pleaded nor established the circumstances, which prevented them from adding the State Government as a defendant. Serious objection as regards non -joinder of necessary parties was raised in the written statement on 16/03/2009 and the application for adding the State as a party, was filed after more than 3 1/2 years on 17/12/2012 and that too after the entire trial had concluded. The Law would not permit such an amendment and the application could not have been allowed circumventing the Law by directing the plaintiffs to deposit costs of Rs.1,000/ -.
The petitioners have strenuously contended that the reasons assigned by the Trial Court are unsustainable. Paragraph Nos. 10, 11 and 12 are pointed out from the impugned order to suggest that they clearly indicate non -application of mind and the said conclusions are perverse. It is, therefore, prayed that the petition be allowed and the impugned order dated 06/07/2013 be quashed and set aside.
Learned Advocate for the respondents has strongly supported the impugned order. Contention is that merely because the plaintiffs appeared to be negligent, would not mean that the amendment should not be allowed. Order 17 Rule 6 of the C.P.C. permits an amendment to be carried out at any time in the suit. There is no bar for adding a party and there is no limitation for doing so. The impugned order reveals proper reasons assigned to the conclusions drawn and the Trial Court was convinced that the suit would be bad for non -joinder of parties. Hence no interference is required in the impugned order.
I find that the petitioners had specifically brought it to the notice of the Court that necessary and proper parties have not been arrayed as defendants through the written statement. Issue No.3 was specifically cast in light of the said pleadings on 25/11/2009. Yet, the respondents did not take any steps thereby indicating gross negligence and laxity on their part.
The conclusions drawn by the Trial Court in paragraph No.10, 11, 12 and 13 are reproduced as below : -
"11.I have seen the provisions of Section 80 of Code of Civil Procedure the same is adjudicated in the statute for getting the State away about due litigations which it has to face on the act committed by its public officers. Some times on receiving the notice itself the matter gets settled by amicably discussion of the State official with the litigation.
It is the submissions that such notice is necessary to be issued prior to filing of the suit but the applicant is submitting about the knowledge at late stage. Hence want to add State Government as party. It is true that prior to sue the State the notice of Section 80 is necessary to be issued or be dispensed with. There is no any application to dispensed the notice of the State. Hence for the betterment in adjudication and for the satisfaction of the decree in execution if the suit is decreed the State is necessary party and permitted accordingly. The plaintiff now to issue notice as per section 80 to the State then this suit be kept in abeyance.
This application is filed after long stage of the proceeding and use the court time. Hence allowed subject to costs of Rs.1,000/ -. The amount be deposited to the Legal Aid Service Authority, Dhule and receipts of the same be produced before the amendment. The point of limitation for the amendment shall be considered at the time of final argument."
Upon going through the above reasons / conclusions, I do not find that the Trial Court has applied its mind to the said application. The application for amendment was made at a belated stage, after the trial was concluded. It, therefore, required a proper scrutiny on the part of the Trial Court since it would be in exceptional circumstances that an amendment could be allowed in the plaint after the trial is over.
In the case of Walchandnagar Industries Limited Vs. Indraprastha Developers and Others, , this Court has held in paragraph No. 87 as under : -
"87. The law on "due diligence" developed till this date is summarized as under : -
(a) "Due diligence" means careful and persistent application and effort. It means the diligence as a prudent man would exercise in the conduct of his own affairs. Unless the party takes prompt steps, mere action cannot be accepted after the commencement of the trial. The due diligence determines the scope of party''s constructive knowledge of the claim. It is a kind of reasonable investigation, which is necessary before claiming the reliefs.
(b) The due diligence is distinct from ignorance. In spite of knowledge, ignorance by a party or an Advocate cannot be a matter of due diligence. The neglect to perform an action, which one has an obligation to do, cannot be called as a mistake.
(c) The degree of prejudice to the other side by an amendment after the commencement of the trial is greater than one at pre -trial stage.
(d) Without recording finding on the question of due diligence, the Court shall not get jurisdiction either to allow or disallow an amendment in the pleadings after the commencement of the trial.
(e) The Court while allowing an amendment must record a finding that in spite of due diligence, the party could not have raised the matter before the commencement of the trial or that the events sought to be brought on record by way of an amendment have occurred subsequent to the commencement of trial.
(f) The facts and grounds in the application for amendment must be clearly stated to bring out a case that the delay caused was beyond the control and diligence of the party proposing the amendment.
(g) Where a party had acted with due diligence or not, would depend upon the facts and circumstances of the case and no hard and fast rule or strait -jacket formula can be laid down."
Taking an over all view of the peculiar facts of this case as recorded above, the Trial Court has fallen in a grave error in passing the impugned order. I find it to be a perverse order. As a result, the Writ Petition is allowed. Impugned order dated 06/07/2013 is quashed and set aside. Exh.111 stands rejected. No order as to costs.