ORDER
H.N. Sarma, J.
1. The subject-matter of challenge of this revision petition is an order dated 22-8-2008 passed in Title Suit No. 452/06 by which the learned Munsiff, No. 2, Kamrup, Guwahati rejected the prayer of the applicant for amendment of the plaint filed by the plaintiff/petitioner.
2. I have heard Mr. S. Shyam, learned Counsel appearing for the plaintiff/petitioner and Mr. S. P. Rai, learned Counsel appearing on behalf of the defendants/respondent.
3. The petitioner as plaintiff brought a civil action against the respondent and 2 others impleading them as defendants by filing Title Suit No. 154/04 in the Court of learned Civil Judge (Sr. Division) No. 3, Kamrup, Guwahati. Due to enhancement of pecuniary jurisdiction of the civil Courts, the said suit was transferred for disposal to the Court of learned Munsiff No. 2, Kamrup, Guwahati wherein it was renumbered as Title Suit No. 452/06.
4. Upon service of summons, the defendants appeared and filed their joint written statements-cum-counter-claim on 5-7-2004 denying the allegations made in the plaint. Against the counter-claim of the defendants, the plaintiff also filed his written statement. Upon passing through the pre trial stages the suit was set down for hearing and the plaintiff adduced evidences and witnesses by way of affidavit in the year 2004 itself. The suit was, thereafter, fixed for cross-examination of the plaintiffs witnesses. At that stage, the defendant No. 1, the constituted attorney of 2 other defendants had expired. Thereafter, being both defendants Nos. 1 and 2 having been expired, their names were struck off from the pleading and the suit proceeded against the defendant No. 3 only. At that stage, the plaintiff filed an application under Order VI, Rule 17 read with Section 151 of the CPC on 4-8-2007 praying for amendment of the plaint by incorporating the paragraphs Nos. 3A, 3B, 3D and 6A. In the meantime, P.W. was partly cross-examined.
5. In the said amendment petition it is stated inter-alia that the defendants in their written statement took a plea that the vendor of the plaintiff was never in possession of any land covered by the Dag No. 729 of K. P. Patta No. 45 and therefore could not have conveyed any valid title to the plaintiff in respect of the area of 6 Lechas of land covered by Dag No. 729 of K.P. Patta No. 45 which is also the subject-matter of the suit. Thereafter, a search in the office of Sub-Registry, Guwahati was made to trace out the title of the vendor of the plaintiff and on such search, the plaintiff came to know about the existence of a Deed of Exchange dated 6-1-1973 as well as Registered Sale Deed dated 24-1-1973 which go to establish the title of the vendor of the plaintiff. The aforesaid fact came to the knowledge of the plaintiff for the first time in July, 2007. After obtaining the certified copies of those documents, the plaintiff felt it necessary to amend the plaint by incorporating certain paragraphs and accordingly leave of the Court was sought for by filing an application as, in the meantime, the trial of the suit had begun. It is further stated in the said application that though the plaintiff instituted the suit also praying for a decree of declaration of his right over the suit land, but due to bona fide mistake and unintentional oversight in the payer portion the declaration of title and interest of the plaintiff over the suit land and prayer for consequential decree of confirmation were omitted. Accordingly, a new paragraph 6-A of the plaint containing the aforesaid facts was sought to be introduced by way of amendment. The plaintiff further stated that the prayer portion of the plaint be allowed to amend to the effect that the petitioner is entitled for a decree of declaration of right and Interest and for a decree of confirmation of possession over the suit land.
6. The defendants objected to the aforesaid prayer for amendment made by the plaintiff by filing written objection, principally on the count that the amendment at such a belated stage after examination of P.Ws. is not permissible and if the amendment is allowed that would change the nature and character of the suit. It is specifically stated that the defendant having disclosed its defence by filing written statement-cum-counter claim in the year 2004 itself denying right of the vendor of the plaintiff, the plaintiff remained silent till the commencement of the trial and accordingly, it cannot be said that the plaintiff could not discover those facts after due diligence.
7. The learned trial Court after hearing both the parties, rejected the prayer of the plaintiff for introduction of the aforesaid paragraphs Nos. 3A to 3D and 6A in the plaint by way of amendment but allowed to insert the prayer l(a) and l(b) as mentioned in the application for amendment, vide impugned order dated 22-8-2008. The plaintiff/petitioner challenges the legality and validity of the said order in this proceeding.
8. In course of argument Mr. Shyam learned Counsel for the plaintiff/petitioner submits that the learned trial Court committed jurisdictional error in refusing to grant leave to amend the plaint by introducing the aforesaid paragraphs in the plaint inasmuch as those facts are essential for a just decision of the case. There having prima facie title of the vendor which was duly reflected in the revenue records, there was no occasion for the plaintiff to further search for the title of the vendor of the plaintiff and during the course of cross-examination of P.W. 1, he was questioned about alleged absence of any title of the vendor of the plaintiff in respect of the aforesaid land covered by Dag No. 729 of K. P. Patta No. 45, and as such a search was made in the Sub-Registry office at Guwahati and eventually the plaintiff came to know about the existence of Deed of Exchange and Sale Deed necessitating introduction for such facts in the plaint. In such a situation the plaintiff acting in due diligence could not get these information prior to getting of the certified copies of those documents.
It is further contended that the vendor of the plaintiff is not available to enlighten the aforesaid facts and only after frantic efforts made by the plaintiff, he could discover the aforesaid facts and the introduction of the new paragraphs would not any way change the nature and character of the suit and rather it would help in proper adjudication of the issue involved in the suit and accordingly, the learned trial Court fell into obvious jurisdictional error failing to consider and note the vital aspect of the matter.
9. Per contra, Mr. S.P. Rai, learned Counsel for the respondent contended that after the recent amendment of Order VI, Rule 17 of CPC in 1999, the prayer of the plaintiff is barred under proviso to Order VI, Rule 17 of CPC. Learned Counsel contends that the defendants know about non-holding of any title over the portion of the suit land by the plaintiff they submit written statement and counter-claim on 5-7-2004 itself and thereafter, the suit crossed through the other ancillary stages and ultimately reached the stage of final hearing and the plaintiff also submitted their affidavit evidence of the witnesses and in fact P.W. 1 was cross-examined in part and thereafter the amendment petition was filed on 4-8-2007 after a lapse of 3 years. Hence, it cannot be contended that plaintiff could not have raised those facts in spite of due diligence before the commencement of the trial. The learned Counsel further contends that in the event of allowing to introduce the aforesaid facts that would totally change the nature and character of the suit as has been projected at the time of its institution which is not permissible under the law and the learned trial Court has not committed any error in passing the impugned order.
10. In support of his contention Mr. Rai has referred to the following decisions:
1) : 2009 AIR SCW 899 : AIR 2009 SC 1433 Vidyabai v. Padmalatha and
2) : (2008) 5 SCC 117 : AIR 2008 SC 2234 Chander Kanta Bansal v. Rajinder Singh Anand.
11. I have carefully considered the rival submissions made by the learned Counsel for the parties. Submissions of the learned Counsel led me to scrutinize thoroughly the plaint, written statement-cum-counter claim filed by the respondents. It is pleaded in paragraph 3 of the plaint that the plaintiff is the absolute owner of the land measuring 1 katha 6 lechas covered Dag No. 664 and 665 of K.P. Patta No. 285 Dag No. 733 K.P. Patta No. 320 and Dag No. 729 of K.P. Patta No. 45 in the revenue village of Japorigog, Mouza-Beltola at Christianbasti, Guwahati by virtue of purchase for valuable consideration from the then owner and got his name mutated in the revenue record and is possessing the same without any interference from any quarter.
12. Plaintiff also pleaded that on 7-4-2004 the defendant along with some antisocial elements are asking the plaintiff to vacate the suit land and threatened him with dire consequences if the same is not vacated within a couple of days and such threatening from the defendant No. 1 have become a regular process and the plaintiff having apprehending of unlawful dispossession of the suit land, instituted the suit inter alia praying for permanent injunction restraining, the defendants and their men from dispossessing him from the suit land by force or not to create any obstacle in peaceful enjoyment of the plaintiff.
13. The suit was filed in the month of April, 2004. The defendants filed their written statements-cum-claim on 5-7-2004. In its pleading, the defendants raised the plea of absence of any possession and title of the vendor of the plaintiff at paragraph 23 of the written statement. On the basis of the pleadings, issues have been settled and the suit entered the stage of hearing. Thereafter, the plaintiff filed the evidence of P.Ws. by way of affidavit in the year 2006 it self P.W. 1 was cross-examined in part. Thereafter, the plaintiff filed this application praying for leave to amend the plaint on 4-8-2007.
14. From the sequence of the above facts as disclosed from the record, there is no dispute that the plaintiff filed the amendment petition after three years from the date of filing of the written statement disclosing the absence of title of the plaintiffs vendor. As against this, the contention of the plaintiff is that since title of the vendor was clear from the revenue records, no occasions arise for the plaintiff to verify further about his title. But meanwhile the vendor of the plaintiff could not be traced out and accordingly such a situation compelled the plaintiff to enquire about the title of his vendor in the Sub-Registry's office, Guwahati wherefrom he could know about the existence of deed of exchange dated 6-1-1973 and sale deed dated 24-1-1973 for the first time in the month of July, 2007.
15. In the light of the aforesaid fact situation, it is to be now examined whether the learned Munsiff committed any error jurisdictional or otherwise in refusing the prayer to allow leave for amendment by Incorporating the paragraphs sought to be introduced.
16. Under the pre-amended law, an amendment of the pleading, if considered in the event of proposed amendment, such amendment is necessary for the purpose of determining the real question in controversy between the parties, the Court could have allowed the amendment of pleadings at any stage of the proceeding. Order VI, Rule 17 have further been judicially interpreted by various Courts including the privy-council and the Apex Court reiterating that Courts are to take liberal approach in considering the prayer for amendment of pleadings.
17. Order VI, Rule 17 has been amended by Amendment Act of 2002 by introducing the proviso therein. The whole object of the amendment is to restrain the amendment of pleadings subsequent to the commencement of trial so that the other party is not caught surprised and have sufficient knowledge well in advance about the case he is to meet with. It is also necessary for curbing the delay in disposal of the suit. After once such trial begins and the parties disclose their stand by way of evidence, it would be difficult for other side to meet with a stand that might be altered by filing the amendment, more particularly, when it appears to be the filing of the lacuna. By introducing the proviso, it is made clear that such amendment is restricted to be allowed at such a stage prior to the beginning of the trial, save and except with the leave of the Court showing that in spite of due diligence, the party could not raise the plea before the commencement of the trial. Even after the commencement of the trial, amendment can be sought if it is established that in spite of due diligence, he could not make the amendment before the commencement of trial and the Court Is entitled to grant leave to amend the pleadings. The reason for the introduction of the proviso is to curtail the delay in disposing the cases. The word 'due diligence' has not been defined in the code.
18. The Apex Court in the case of Chander Kanta AIR 2008 SC 2234 (supra) Interpreting the word due diligence at paragraph 16 held as follows:
The words due diligence have not been defined in the Code. According to Oxford Dictionary (Edn. 2006), the word diligence means careful and persistent application or effort. 'Diligent' means careful and steady in application to one's work and duties, showing care and effort. As per Blacks Law Dictionary (18th Edn.), 'diligence' means a continual effort to accomplish something, care; caution the attention and care required from a person in a given situation. 'Due diligence' means the diligence reasonably expected from, and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edn. 13) 'due diligence', In law, means doing everything reasonable, no everything possible 'Due diligence' means reasonable diligence it means such diligence as a prudent man would exercise in the conduct of his own affairs.
19. Again in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India reported in (2005) 6 SCC 486 at para graphs Nos. 41, 42 and 43 the Supreme Court held as follows:
41. These provisions cast an implied duty on all concerned Governments and State and statuary authorities to send appropriate reply to such notices. Having regard to the existing state of affairs we direct all concerned Governments Central or State or other authorities, whenever any statute requires service of notice as a condition precedent for filing of suit or other proceedings against it to nominate within a period of three months, an officer who shall be made responsible to ensure that replies to notices under Section 80 or similar provisions are sent within the period stipulated in a particular legislation. The replies shall be sent after due application of mind. Despite such nomination, if the Court finds that either the notice has not been replied or reply is evasive and vague and has been sent without proper application of mind, the Court shall ordinarily award heavy cost against the Government and direct it to take appropriate action against the concerned officer including recovery of costs from him.
42.Section 115 of the Code vests power of revision in the High Court over Courts subordinate to it. Proviso to Section 115(1) of the Code before the amendment by Act 46 of 1999 read as under:
Provided that the High Court shall not, under this section vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding except where-
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings or
(b)the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
43.Now, the aforesaid proviso has been substituted by the following proviso:
Provided that the High Court shall not, under this section, vary or reverse any order made or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.
20. Unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of the trial would not entitled him for leave to amend.
21. In the backdrop of the above discussions and in view of the sequence of events regarding the stand of the defendants about absence of title of the vendor of the plaintiff and the stage when the said plea was made known to the plaintiff, in my considered opinion, it cannot be said that the plaintiff acted with due diligence to know and investigate the title of his vendor before commencement of the trial. The learned Munsiff has allowed the prayer to amend the prayer portion of the suit holding inter alia that the pleadings reflect that the plaintiff is seeking declaration of his title over the suit land he is possessing and the proposed amendment of the prayer would not introduce new facts but flows from the claims made in the plaint. In spite of allowing the said prayer, the learned trial Court rejected the prayer of the plaintiff for amendment of the plaint introducing a new paragraph as 6A. Paragraph-6A relates only to the prayer of the plaintiff for declaration of his right, title and interest over the suit land. The prayer portion of the plaint as sought to be amended by incorporating the statement made in paragraph-13 having been allowed, the learned Munsiff ought not to have rejected the proposed amendment by incorporating the paragraph-6A. Such rejection is inconsistent with that part of the impugned order by which the prayer to amend the prayer portion of the suit is allowed. Accordingly, it is ordered that the plaintiff be allowed to amend the plaint by incorporating the paragraph 6A as mentioned in paragraph 12 of the prayer for leave to amend the plaint, maintaining the other part of the impugned order.
22. In view of the inability of the plaintiff to show and establish that in spite of due diligence he could not pray for amendment of the plaint before commencement of the trial, I do not consider it appropriate to answer the other questions raised by Mr. Rai to the effect that if the amendment is allowed that would change the nature and character of the suit.
23. As narrated earlier, on the face of clear averments in the plaint that the plaintiff is the absolute owner of the suit land covered by Dag No. 729 of K. P. Patta No. 45, it would be open for the plaintiff to prove the said fact in whatever manner he likes.
24. The plaintiff has also complied with the requirement of Order VII, Rule 3 by giving the description of the suit property. Certainly in order to claim and/or prove the title of the plaintiff over the suit land, the Deed of Exchange and the Sale Deed in question which was stated to have been obtained by the plaintiff in July, 2007 might have certain bearing in support of his claim for title. It is true that the plaintiff has not produced the said two documents nor produced any list of documents when the suit was presented In the Court. Such subsequent obtaining of the documents can be received by obtaining leave of the Court at the hearing of the suit in terms of Order VII, Rule 14(3) of CPC. Even if the Court does not accord any leave as required under Order VII, Rule 14(3) CPC, the plaintiff is entitled to produce these two documents for cross-examination of the witnesses of the defendants in terms of Order XIII, Rule 1(3) of CPC. The plaintiff would be entitled to recourse such courses as are open to him in order to establish that he is the absolute owner of the suit property or part thereof.
25. For the reasons given and discussions made above, this revision petition stands partly allowed with the observation to the extent as indicated above.