Ram Surat Ram (Maurya), J.
1. Heard Sri Ravikant, Senior Advocate, assisted by Sri V.C. Tripathi and Sri Amit Negi, for the petitioners and Sri L.P. Singh, for respondent-3. Sri S.D. Kautilya, appears for respondent-2 and Standing Counsel for respondents-1, 4 and 5. Writ-B No. 4011 of 2014 has been filed against the order of Additional Commissioner (respondent-5) dated 19.9.2013, allowing the revision and remanding the matter to trial Court to reconsider the amendment application dated 24.9.2012, filed by respondent-3 for amending the plaint of the suit filed u/s 59 of U.P. Tenancy Act, 1939/section 229-B of U.P. Act No. 1 of 1951.
2. Writ C No. 3991 of 2014 has been filed against the order of Sub-Divisional Officer (respondent-4) dated 16.12.2013, allowing the amendment application for amending the plaint filed by respondent-3, in a suit u/s 59 of U.P. Tenancy Act, 1939/Section 229-B of U.P. Act No. 1 of 1951. As in both the writ petitions controversy are common between the same parties as such both the writ petitions were heard together and are being decided by a common judgment.
3. The School And Home For Blinds (Blinds Asylum), Naini, Allahabad (respondent-3) (hereinafter referred to as the plaintiff) filed a suit (registered as Suit No. 153 of 2004) for declaring it as khudkast holder/bhumidhar of the land of an area of 89 bigha 18 dhur situated in village Abhaychandpur, pargana Arail, district Allahabad, details of which have been given in the plaint. It has been stated in the plaint that the plaintiff was a registered society. The object of the plaintiff society was to establish school for blind students with facilities of foods, clothes and residence. On the demand made by the plaintiff, State of U.P. acquired the land in dispute, in the year 1926 and allotted it to the plaintiff through Allahabad Improvement Trust. After getting the land, the plaintiff constructed school and hostel buildings over a part of the land and running the school for blind students and providing facilities of foods, clothes and residence. Remaining land was being cultivated by the plaintiff. To meet the expenses for establishing the school, the plaintiff took help of Prince Veteran Church of U.S.A., Allaha
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bad, who agreed to provide help on the condition of recording its name over the properties of the plaintiff. A new bridge has been constructed over Yamuna river, in which some land of the plaintiff was also acquired. In order to claim compensation, the plaintiff obtained revenue record of the land in dispute then it was noticed that the name of respondent-3 has been recorded over the land in dispute. The land in dispute was recorded in the name of Andhakhana in 1334 about in the year 1359 F, it has been wrongly recorded in the name of Board of Foreign Mission of Prince Veteran Church of U.S.A., Allahabad. After independence in the country, Prince Veteran Church of U.S.A. left India and the properties were surrendered in favour of various institutions to whom help was provided by it. The plaintiff has been in possession over the land in dispute through out. On these allegations, the suit was filed.
4. The suit was contested by the petitioner, who denied the plaint allegations. It has been stated by the petitioner that the land in dispute was initially belonged to North India Mission and Blind Asylum was run by Allahabad Agricultural Institute since 1.7.1930. Mr. Washington, the father of Smt. Susan Elizabeth (claiming herself as present Secretary of the plaintiff) was Honorary Superintendent of the School and Home for Blind. School for Blind stopped functioning in Seventies. As per agreement, the properties were reverted to Allahabad Agricultural Institute. The plaintiff is a trespasser over the land in dispute and has no right over it.
5. The plaintiff filed an application for amendment of the plaint on 24.9.2012, for incorporating amendment in paragraphs-2, 4 and 8 of the plaint. The proposed amendment are (i) In paragraph-2 of the plaint, to delete the words "improvement trust" and to substitute in its place word "State of U.P. through the Collector", (ii) In paragraph-4 of the plaint, to delete the words "improvement trust" and to substitute in its place word "State of U.P. through the Collector" and after words "vadi ko" to add words "lagan mukt grantee" and (iii) In paragraph-8 of the plaint, to add word "Aa" before word "vivadit" and to add /2 after letters 145 and 146.
6. The petitioner filed an objection to the aforesaid amendment application and stated that proposed amendments are barred by time as the amendment application has been filed after about 10 years of filing of the suit. As fresh suit on the proposed amendment has become time barred as such proposed amendment cannot be allowed. The amendment application is mala fide and has been filed to linger the suit. Zamindari of the land in dispute, which situate within municipal limits of Nagar Nigam Allahabad has not been abolished as such the suit itself was not maintainable and the amendment application cannot be allowed. The proposed amendments will change the nature of the suit and cannot be allowed. The amendment application is mala fide.
7. The trial Court by order dated 2.9.2013 rejected the amendment application on the ground that it was filed at a belated stage. The plaintiff filed Revision No. 34 of 2013 from the aforesaid order, which was allowed by Additional Commissioner (respondent-5), by order dated 19.9.2013 and matter was remanded to trial Court to reconsider the amendment application and in case it is found that nature of the suit is not changed by the proposed amendment then to allow it. After remand, trial Court allowed the amendment application by order dated 16.12.2013.
8. The Counsel for the petitioner submitted that Order VI Rule 17 C.P.C. has been amended by Act No. 22 of 2002 w.e.f. 1.7.2002 and a Proviso has been added in it which provides that no application for amendment shall be allowed after 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 commencement of the trial. In this case, issues have been framed and evidence of the parties was being recorded at the time when the amendment application was moved on 24.9.2012. Neither the plaintiff in the amendment application said a word that in spite of due diligence, she could not have raised the matter before commencement of the trial nor the trial Court recorded any findings in this respect. Amendment application filed by the plaintiff has been illegally allowed. He relied upon the judgments of Supreme Court in Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Regd.) Vs. Ramesh Chander and Others, , Amrit Lal v. Shiv Narain Gupta (2010) 15 SCC 510 State of M.P. v. Union of India (2011) 12 SCC 268, J. Samuel and Others Vs. Gattu Mahesh and Others, , Abdul Rehman and Another Vs. Mohd. Ruldu and Others, and Mashyak Grihnirman Sahakari Sanstha Maryadit Vs. Usman Habib Dhuka and Others, .
9. I have considered the arguments of the Counsel for the parties and examined the record. Order VI C.P.C. deals with pleading. Order VI Rule 2 provides that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which party pleading relies for his claim or defence as the case may be but not the evidence by which they are to be proved. Order VI Rule 4 provides to give material particulars in the cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence and in all other cases in which particular may be necessary. Order VI Rule 6 provides that any condition precedent, the performance or occurrence of which is intended to be contested shall be distinctly specified in his pleading by the plaintiff or defendant. Thus the facts on which a party relies for his claim or defence and any condition precedent, the performance or occurrence of which is intended to be contested are the material facts and required to be pleaded. In the case in which the party relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence and in any other case in which particular may be necessary, material particulars are also required to be disclosed. Order VI Rule 17 provides for amendment of the pleading, in which Proviso has been added w.e.f. 1.7.2002, which provides 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 parties could not have raised the matter before commencement of trial. Supreme Court in Mayar (H.K.) Ltd. and Others Vs. Owners and Parties, Vessel M.V. Fortune Express and Others, held that the expression "material facts" has not been defined anywhere, but from the wording of Order 6 Rule 2 the material facts would be, upon which a party relies for his claim or defence. The material facts are facts upon which the plaintiff's cause of action or the defendant's defence depends and the facts which must be proved in order to establish the plaintiff's right to the relief claimed in the plaint or the defendant's defence in the written statement.
10. A perusal of amendment application filed by respondent-3 and the objection filed by the petitioner shows that neither the plaintiff made any averment that in spite of due diligence, she could not raise the matter before commencement of trial nor any objection has been raised in this respect. It is only in the revision as well as in the writ petition, the petitioner is raising this point that neither the plaintiff in the amendment application has said a word that in spite of due diligence, she could not have raised the matter before commencement of the trial nor the trial Court has recorded any findings in this respect. Explanation of the plaintiff before revisional Court was that typographical error had occurred in the plaint and the Counsel who had drafted the plaint could not check it. He died during pendency of the suit. It is only during trial, the new Counsel engaged by the plaintiff has checked it then the amendment application has been filed. Before coming to the conclusion as to whether the explanation given by the plaintiff is sufficient to hold that in exercise of due diligence the matter could not brought before commencement of the trial it is appropriate to consider the cases relied upon by the petitioner.
11. Supreme Court in Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Regd.) Vs. Ramesh Chander and Others, held that an application for amendment filed 7 years after the filing of the suit to include the plea of specific performance, would not defeat the valuable rights of limitation accruing to the other side. In Amrit Lal v. Shiv Narain Gupta, (2010) 15 SCC 510 held that so far as the rejection of prayer for amendment in the written statement is concerned, it is clear that the compromise is said to have been arrived at on 16.11.1992, which was promptly disputed by the landlord submitting that the same was void being the outcome of fraud and coercion played upon him. The trial Court felt convinced by the plea of the landlord and, therefore, refused to take the compromise on record. The plea of the tenant which was specifically refused to be entertained by the trial Court by order dated 23.1.1995 was sought to be raised again by way of amendment in the written statement and that too belatedly. The High Court has formed an opinion that the amendment sought for on 12.12.1995 based on an event of 16.11.1992 and that too by passing the order dated 23.1.1995 and in face of the prayer of the landlord seeking striking out of the defence of the tenant was belated and mala fide and should not have been allowed by the Appellate Authority. The High Court, in our opinion, has rightly formed this opinion. In State of M.P. v. Union of India (2011) 12 SCC 268, held that finally, the original plaint proceeds that the exercise of power by the Central Government by passing the impugned Notifications dated 2.11.2004 and 4.11.2004 under sections 58(3) and 58(4) of the MPR Act was arbitrary, unjust and unfair and had resulted in serious anomalies in the apportionment of assets and liabilities. In our view, after praying for such relief, if the amendment as sought for by the plaintiff is allowed and the plaintiff is permitted to challenge the vires of the said provisions, then the very basis on which the plaintiff is claiming its right to apportionment of assets, rights and liabilities of the undivided Board will cease to be in existence and the entire suit of the plaintiff will be rendered infructuous. Moreover, it is settled principle of law that leave to amend will be refused if it introduces a totally different, new and inconsistent case or challenges the fundamental character of the suit.
These cases are not relevant for the controversy raised in this writ petition.
12. Supreme Court in J. Samuel and Others Vs. Gattu Mahesh and Others, held that 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.
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 it 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.
In the given facts, there is a clear lack of "due diligence" and the mistake committed certainly does not come within the preview of a typographical error. The term "typographical error" is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore, the act of neglecting to perform an action which one has an obligation to 'do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code.
The claim of typographical error/mistake is baseless and cannot be accepted. In fact, had the person who prepared the plaint, signed and verified the plaint showed some attention, this omission could have been noticed and rectified there itself. In such circumstances, it cannot be construed that due diligence was adhered to and in any event, omission of mandatory requirement running into 3 to 4 sentences cannot be a typographical error as claimed by the plaintiffs. All these aspects have been rightly considered and concluded by the trial Court and the High Court has committed an error in accepting the explanation that it was a typographical error to mention and it was an accidental slip.
Though the Counsel for the appellants have cited many decisions, on perusal, we are of the view that some of those cases have been decided prior to the insertion of Order 6 Rule 17 with proviso or on the peculiar facts of that case. This Court in various decisions upheld the power that in deserving cases, the Court can allow delayed amendment by compensating the other side by awarding costs. The entire object of the amendment to Order 6 Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other's case.
13. Supreme Court in Abdul Rehman and Another Vs. Mohd. Ruldu and Others, held that the original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimise the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. In Mashyak Grihnirman Sahakari Sanstha Maryadit Vs. Usman Habib Dhuka and Others, held that indisputably, Respondent 1-plaintiff was the office-bearer of the Society at the relevant time and by resolution taken by the Society Respondent 1 was authorised to complete the transaction. Hence, it is incorrect to allege that Respondent 1-plaintiff was not aware about the transaction of 1989. Moreover, before the institution of the suit in the year 2010, the plaintiffs allegedly came to know about the conveyance deed dated 8.2.1989, sometime in the year 2009, but relief was not sought for in the plaint which was filed much later i.e. 14.10.2010. The High Court has not considered these undisputed facts and passed the impugned order on the general principles of amendment as contained in Order 6 Rule 17 of the Code of Civil Procedure. Hence we do not find any ground for allowing the amendment sought for by the plaintiffs which was not only a belated one but was clearly an afterthought for the obvious purpose to avert the inevitable consequence.
14. Thus Supreme Court in J. Samuel's case and Abdul Rehman's cases (supra) held that the object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. In J. Samuel's, it has been held that as in a suit for specific performance, it is mandatory to plead and prove "ready and willingness" u/s 16(C) of the Specific Relief Act, 1963 as such if such plea is missing then it cannot be termed as "typographical error" and will be lack of "due diligence".
15. In the present case, material fact on which relief has been sought was that the land in dispute was acquired on the demand of the plaintiff by State of U.P. and was allotted to it. Whether it was allotted through Collector Allahabad or through Allahabad Improvement Trust was not material fact, as in order to prove allotment, the plaintiff has to give his evidence. It is merely particular of the evidence. The proposed amendment, neither change the nature of the suit nor cause any prejudice to the defendant, who denied the claim of the plaintiff and claimed himself as owner of the land in dispute. In order to do justice between the parties the trial Court has rightly allowed the amendment.
16. As stated above that no objection relating to "due diligence" has been taken by the petitioner in his objection as such no finding has been recorded in this respect. However, the plaintiff has stated in the revision that typographical error had occurred in the plaint and the Counsel who had drafted the plaint could not check it. He died during pendency of the suit. It is only during trial, the new Counsel engaged by the plaintiff has checked it then the amendment application has been filed. As found above, the words which are sought to be deleted and the words which are sough to be added by the proposed amendments are not the material facts so as to say that it was mandatory for the Counsel to be pleaded. These are material particular and in the nature of the suit was not necessarily required to be incorporated under Order VI Rule 4 C.P.C. as such even if it is taken that inadvertently it was typed in the plaint then also lack of due diligence cannot be inferred. Trial Court has not committed any illegality in allowing the amendment application. In any case, it does not cause any prejudice to the petitioner and no interference is required by this Court. In view of the aforesaid discussions, the writ petitions have no merits and are dismissed.