AI Structured Summary
Not yet generated for this judgment
Judgment
 [01] Heard the learned Counsel for the petitioner and the learned Counsel for the respondents, who appear by waiving notice on behalf of the
respective respondents.
[02] Rule. Rule made returnable forthwith. Heard finally by consent.
[03] Two orders dated 19/06/2018 and 13/07/2018 passed by the trial Court are under challenge in this petition. The last order dated 13/07/2018 is
identical in nature to the order passed on 19/06/2018. The reason being that the last order also rejects the second application filed for amendment of
the plaint for the same reason, based upon identical facts.
[04] The facts relevant for the purpose of the present petition are : (i) the petitioner is the original plaintiff and the respondents are the original
defendants, (ii) the petitioner filed a civil suit against the respondents on or about 19th June, 2015 claiming reliefs of Declaration and Permanent
Injunction, (iii) the petitioner raised categorical pleas that he was in possession of suit land and that the respondents were disturbing his possession and
(iv) the suit proceeded on such pleas and reached the stage of argument when the application for amendment was made for the first time.Â
[05] Now, let us consider the nature of proposed amendments. The proposed amendments are for inserting pleas to the effect that the plaintiff
(petitioner) was dispossessed by the defendants forcibly on 01/04/2015, that is before filing of the suit, and that a false complaint filed against the
plaintiff under Sections 447 and 506 of the Indian Penal Code being R.C.C. No.89/2015 by the defendants (respondents) resulted in acquittal of the
plaintiff on 18/11/2017 and that the possession of the suit land be handed over to the plaintiff.Â
[06] These amendments were proposed to be made firstly on 17/03/2018 and when the application was rejected by the first order, dated 19/06/2018,
they were once again proposed to be made on 07/07/2018, which effort was also rejected by the last order dated 13/07/2018. It is not in dispute that
both these applications were filed at the time when the suit was fixed for arguments i.e. much after commencement of the trial. The proposed
amendments would reveal that these facts were already well within the knowledge of the petitioner and, therefore, it was required of the petitioner to
have explained as to why, in spite of due diligence on his part, he could not have made these averments at the time of filing of the suit or at least
before commencement of the trial of the suit. The petitioner has not given any explanation for the same, except for the explanation that it was a
mistake of drafting committed by the then Advocate. Reliance has also been placed by Shri Waghmare, learned Counsel for the petitioner, upon the
case of Shanabhai Mangalbhai Patel & others vs. Bhagavanbhai Revabhai Patel & another â€" AIR 1990 GUJARAT 74.Â
[07] I do not think that any assistance can be sought by the petitioner from the law laid down by the Gujarat High Court in the said case of
Shanabhai. The reason being that, that was the case which was decided much before 2002 amendment to the provisions of Order 6 Rule 17 of the
Code of Civil Procedure came into being. Even otherwise, mistake committed by an Advocate in drafting of the pleadings cannot be considered to be
a reason enough for answering appropriately the due diligence test and something more is required to be stated by a party seeking the amendment to
satisfy the Court on this count. If an explanation like the one being offered now is to be accepted by the Court, it would result in making Civil Courts
allow almost all applications at any stage of the suit as it is always easier to say that there was drafting mistake than to explain as to why in spite of
due diligence the pleading could not be raised earlier. Concept of due diligence applies to a party seeking amendment of pleadings and as an
Advocate of party does everything on the instructions of the party which is his client, mistake committed by the Advocate in drafting pleading cannot
be taken as amounting to reasonable explanation contemplated by the provision of Order 6 Rule 17 of the Code of Civil Procedure, unless it is reliably
shown that specific instructions for inclusion of pleadings were given to the Advocate who, due to inadvertence, failed to incorporate them in pleadings
and also explained further in a reasonable manner the conduct of the party in failing to notice the drafting mistake continuously, in spite of his due
diligence, till filing
of amendment application. If this is all ignored and amendment application is allowed, the object of the amended provision of Order 6 Rule 17 of the
Code of Civil Procedure will be defeated. The object is to expedite the trial and prevent a party from making a frivolous application, the real
intention of which is to prolong the trial of the suit. Therefore, the due diligence concept introduced by the amendment has to be understood with all
its seriousness by the Courts. That would mean that the Courts would have to be cautious in considering the justifications given by the parties and it
may not be proper for the Courts to allow such amendments on a capacious ground of mistake committed in drafting of the pleadings by the
Advocate. After all, an Advocate, who is a practicing lawyer before the Court, is entitled to a presumption to be drawn in his favour that whatever
he does on behalf of his client or in his effort to represent the client, does so according to best of his abilities and on the basis of the instructions given
to him by his client, though it can be dislodged by his client by placing before the Court relevant facts and circumstances hinted at earlier.  Â
[08] A view similar as above, has been taken by me in Conception Fernandes & another vs. Tasneem Shaikh & others â€" 2014(5) Mh.L.J. 494
observing in paragraph 14 thus :
“14......... Whatever an Advocate does on behalf of the client is considered to be done by the party himself. The acts of the Advocate before the
Court are binding upon the party he represents and what he submits before the Court on facts is only what the party says and what he says in law is
with the approval, express or assumed, of the party. In other words, all actions taken before the Court by an Advocate, are the actions of the party.
So, there is no splitting of concept of due diligence, one of the party and the other of the Advocate, so as to enable the party to be excused for
negligence of the Advocate just by showing his own diligence. If such a ground is to be taken as a good ground, it may provide an effective tool to
the lazy and indolent parties to conveniently get over the rigour of due diligence test prescribed under the proviso to Rule 17, Order 6, Civil Procedure
Code........â€Â
[09] Here, in the present case, the explanation that there was a mistake in drafting of the pleadings does not appear to be logically acceptable for the
reason that the mistake is not entirely of drafting, but mostly of giving of instructions on facts of the case to the Advocate. In the suit, as originally
filed by the petitioner, there is a specific pleading made by him that he was in possession of the suit land. But now, by the proposed amendments,
the petitioner seeks to take a turn around by saying that he was forcibly dispossessed on 01/04/2015 and that was before filing of the suit. The trial
Court has also dealt with this aspect of the case by finding that the plaintiff cannot be permitted to blow hot and cold in one breath and rightly so.Â
[10] At this juncture, the learned Counsel for the petitioner invites my attention to the admission given by defendant No.2 in his evidence in a criminal
case, which was registered against the petitioner, that the incident giving rise to filing of a criminal complaint occurred on 28/03/2015 and, therefore,
submits that when the fact of dispossession is admitted by the defendants, its incorporation by way of a pleading in the plaint is necessary for deciding
the real controversy involved in the matter. Once again, I would say that the suit has been filed in June, 2015 and this incident, if at all it was there,
was of March, 2015 and, therefore, it could have been incorporated at the time of filing of the suit itself or immediately thereafter, but that has not
been done by the petitioner. Even otherwise, the version of defendant No.2 that the incident occurred on 28/03/2015 has been disbelieved by the
Criminal Court and that is the reason why the petitioner has been acquitted by the Criminal Court. The so called admission thus would really be not
necessary for deciding the real controversy involved in this suit.
[11] So, my opinion is that, the proposed amendments being purely factual in nature, could not be said to have not been incorporated by the Advocate
for the reason of mistake in drafting of the pleadings and basically are the result of not giving of proper instructions by the petitioner himself and there
being no explanation given by him for his such failure, I would further say, the petitioner has failed the test of due diligence incorporated by proviso to
Order 6 Rule 17 of the Code of Civil Procedure.Â
[12] In the result, I do not find any patent illegality in the first order passed by the trial Court on 19/06/2018. Since, the last order dated 13/07/2018
has been based on identical facts as the facts involved in the order dated 19/06/2018, same also cannot be found to be containing any patent illegality
or perversity. There is no merit in this petition. The petition stands dismissed. Rule is discharged with no order as to the costs.