Merits of amendment should not be considered while deciding amendment application

The Hon’ble Supreme Court in the case of Rajesh Kumar Agarwal
(supra)  has inter  alia  held in  paragraph  19  that while  considering   whether  an
application for amendment should or should not be allowed, the Court should not go
into the correctness or falsity of the case in the amendment.  Likewise, it should not
record a finding on the merits of  the amendment. The merits of  the amendment
sought to be incorporated by way of an amendment are not to be adjudged at the
stage of allowing the prayer for amendment.  

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 867 OF 2012
IN
SUIT  NO. 603 OF 2005
Perviz J. Modi                        … Applicant/
                  (Orig. Defendant)
In the matter between: 
1. Rohit A. Kapadia     

        vs.
Perviz J. Modi, 
CORAM:    S.J. KATHAWALLA, J.

Judgment pronounced on : March  20, 2013



1. The Plaintiffs have filed the above suit against the Defendant for a declaration
that the concluded contract in terms of the unsigned MOU being Exhibit­O to the

Plaint, arrived at between the Plaintiffs and the Defendant is valid, subsisting and
binding on the Defendant and the Defendant be ordered and decreed to specifically
perform the said concluded contract  and for the said purpose to do all acts, deeds
and things and execute all necessary documents, papers, applications, etc. 
2. In September 2006,  the Defendant  took out Notice of Motion No. 3818 of
2006 to condone the delay of 465 days in filing the written statement.  By an order
dated    31st  March  2008,  the  said Notice  of   Motion was  allowed  by  this Court
(Coram: S.C. Dharmadhikari, J.)  and the written statement dated 28th  September
2006 was taken on record. 
3. From  the  roznama it appears  that after  the   written statement   dated 28th
September  2006 was  taken  on  record,  the  suit  came  up  on  Board  only  on  13th
February 2012, when issues were  framed   in  the  above  suit;  the Plaintiffs were
directed   to   file   their   affidavit   of   evidence,   affidavit   of   documents   along   with
compilation of documents  on or  before 27th  February 2012;    the Defendant was
directed to file  her affidavit of documents along with compilation of documents on
or before 27th February 2012 and the matter was adjourned to 5th October 2012 for
admission and denial of documents.  On 5th March 2012, the documents submitted
on behalf of the Plaintiffs were marked and on 20th  April 2012, the Plaintiff No.1
was cross­examined by the Advocate appearing for the Defendant.  In the meantime,
on  31st March 2012, 8 documents were tendered on behalf of the Defendant which
were marked as Exhibits/for identification.  The cross­examination of the Defendant

was  fixed  on  27th  April  2012.   On  that  day,  the Defendant was  ready with  the
affidavit  of evidence.    The  Learned  Senior Advocate  appearing  for  the  Plaintiffs
objected to the contents contained in paragraphs 7 and 8 of the affidavit of evidence
on  the  ground  that  the  same  were  not  found in  the  written    statement  of  the
Defendant. The  Learned Senior Advocate  appearing  for  the Defendant submitted
that the necessary averments to the effect (a) that the Plaintiffs are not entitled for a
decree of specific performance and (b) that granting of reliefs as prayed for by the
Plaintiffs will cause harm, loss  or injury to the Defendant, are already made in the
written   statement     by   the   Defendant.     The   Learned   Senior   Advocate   further
submitted  that    the  facts  contained in  paragraphs  7  and  8  have  surfaced   very
recently i.e. in the meeting held by the Defendant and her husband (who are very
elderly persons) with their Advocates  for preparation of the affidavit of evidence,
and have accordingly been incorporated in the affidavit of evidence in support of the
aforesaid averments. This Court   was   prima facie  of  the view  that  the objection
raised on behalf of the Plaintiffs may be  tenable and therefore the learned Senior
Advocate appearing for the Defendant could consider the possibility of incorporating
the contents of paragraphs 7 and 8 through an amendment to the written statement.
4.   The Defendant  has  thereafter  taken  out  the  present   Chamber  Summons
seeking to amend the written statement  dated 28th September 2006, to the extent of
incorporating   the   contents   of   the   two   paragraphs   contained   in   the   Affidavit   of
evidence. What is sought to be introduced by the Defendant by way of the present
amendment to the written statement is the fact that she and her husband who are

76  and  82 years  old  respectively,  due  to  the extreme  cold weather  and lack  of
domestic   help  in  Canada,  have  decided   to  stay  in  India  at   the    suit   flat  from
November  to April and if  they are directed  to specifically perform  the purported
Agreement as prayed for by  the Plaintiffs,  the same will cause grave hardship  to
them.    The Chamber Summons is now taken up for hearing and final disposal.
5. Mr. Saleh Doctor,  the Learned Senior Advocate appearing for the Plaintiffs,
has submitted that the amendment is sought to be introduced by the Defendant to
her  written  statement   admittedly  after  the  commencement  of  the  trial.    In  the
affidavit in support of the Chamber Summons, there is no averment that the matter
sought to be introduced by the proposed amendment could not have been brought
on record despite exercise of due diligence, which fact is required   to be averred
and the application is bound to be rejected in the absence  of such an averment.   He
submitted that it is a well settled principle of law that when a statute requires a
particular condition to be fulfilled, the party relying on the same must aver that such
condition has in fact been satisfied.  He submitted that the Defendant in the present
Chamber  Summons  or in  the  affidavit in  support  thereof  has  failed  to make  an
averment and explain all relevant facts as to what due diligence was exercised by
the Defendant earlier, despite which the Defendant could not move the amendment.
He  submitted  that  unless  this mandatory  condition  is  satisfied,  the  amendment
cannot  be  allowed.     Mr. Doctor in  support  of  this  contention  has  relied  on  an
unreported decision of a learned single judge of this court in the case of Air control

& Chemical Engineering Co. Ltd. vs. M/s. Sheetal  Ice Factory1 which is followed by
another learned Single Judge of this Court in Shambhu Nath Rameshchandra Sarvar
vs.Surendra Manilal Jhaveri2.  
6. Mr. Doctor further submitted that it is now  well settled that in view of the
proviso  to Order 6 Rule 17  of  the Civil  Procedure Code,  1908 (“the CPC”),  the
Court's jurisdiction  to allow  the amendment   after commencement of  the  trial is
taken away unless the party applying for amendment satisfies the Court that in spite
of due diligence the matter sought to be introduced by way of an amendment could
not be raised before commencement of the trial.  In support of his contention, Mr.
Doctor relied on the decisions of the Hon'ble Supreme Court in Vidyabai and others
vs.   Padmalatha   and   another3
    and  Ajendraprasadji   N.   Pandey   vs.   Swami
Keshavprakash4
.  Mr. Doctor submitted that  in the present case the facts constituting
the alleged hardship appear to arise out of events alleged to have happened in July,
2005.  The Defendant affirmed her written statement in September 2006 and the
same was filed on 7th April 2008. Therefore, the Defendant could have taken the said
plea of hardship in the written statement itself.  On 13th February 2012, issues were
framed in  the  present  case.  On  27th  February  2012,  the  Plaintiff  No.1  filed  his
affidavit in lieu of examination­in­chief . Cross­examination was completed on 20th
April   2012.   The   Defendant's   husband   was   present   in   Court   during   the   cross­
examination     of   the   Plaintiff   No.1.       The   Defendant   and   and/or   her   husband
1 Decided on 10th January, 1973 in AO No. 158 of 1972
2LXXX BLR 34
3 (2009) 2 SCC 409
4(2006) 12 SCC 1

admittedly   visited     India   on   occasions     even   prior   thereto.  The  Defendant   has
belatedly taken out the present Chamber Summons after commencement of the trial
and that too without even offering any explanation (much less a cogent one) as to
the  fact  that “in spite of due diligence”  the Defendant could not have raised the
matter before “commencement of trial”.  Mr. Doctor has submitted that therefore the
conduct  of the Defendant clearly shows that the amendment sought to be made is
nothing   but   an   afterthought.     It   is   submitted   that   it   is   inconceivable   that   the
Defendant would not have instructed her lawyers  to do  so,  at least prior  to  the
commencement of the cross examination of the Plaintiff No.1. In any event, there is
no explanation as to why the facts sought to be introduced at this belated stage,  i.e.
after completion  of the evidence of Plaintiff No.1, could not be raised earlier.  It is
submitted  that  therefore  the pre­condition  for exercise of  the Court's jurisdiction,
viz. concerning  “due diligence” has not been  satisfied by  the Defendant.    In  the
absence of the same, therefore, this Court would not have jurisdiction to consider
the present Chamber Summons for amendment.  
7. Mr. Doctor next submitted  that the facts sought to be pleaded by the present
Chamber   Summons   are   not   necessary   for   the   purpose   of   determining   the   real
question   in   controversy   between   the   parties.     By   the   present   amendment,   the
Defendant is seeking to introduce   facts which occurred in July, 2005 which   are
subsequent to the date of the contract.  He submitted that the  question of hardship
in a contract is to be judged at  the  time it was entered into.    In support of  this
contention, he has relied on explanation 2 of Section 20 (2) (b) of the Specific Relief

Act,   1963   and   a   decision   of   the   Madras   High   Court   in   the   matter   of  S.P.
Narayaaswami Pillai vs. Dhanakoti Ammal5
.  Mr. Doctor submitted that there is no
allegation   that   the   Plaintiffs   have   committed   any   act   to   cause   hardship   to   the
Defendant.  The question of hardship has to be judged with reference to the facts as
on   the   date   of   the   contract.     Mr.   Doctor,   therefore,   submitted   that   in   the
circumstances, the Chamber Summons deserves to be dismissed with costs. 
8. Mr.   Joseph   Kodianthara,   the   Learned   Senior   Advocate   appearing   for   the
Defendant,  submitted  that  the  above  suit is  filed  for  specific  performance  of  an
alleged   oral   agreement   stated   to   be   entered   into   between   the   Plaintiffs   as   the
Purchasers and the Defendant as the Seller.  Therefore the existence of a concluded
contract as between the Plaintiffs and the Defendant is itself in dispute.  However,
considering  the  scope  and  ambit  of  a  specific  performance  suit,  the  question  of
comparative hardship is  also  an issue  that can be  raised even  assuming without
admitting the existence of a concluded contract between the parties.  It is submitted
that the present Chamber Summons has been filed under Order VI Rule 17 of the
CPC  for amending the written statement and consequently for raising an additional
issue viz. “Whether  the Plaintiffs prove that they are entitled  to a decree of specific
performance?       Mr. Joseph has  taken me  through paragraphs   20 and 21 of  the
written statement  dated 28th September 2006 and paragraphs 5, 6, 7, 11, 12, 13, 15
and 16 of the affidavit in support of the Chamber Summons and has submitted  that
it is true that the evidence of the Plaintiff No.1 commenced on 5th March 2012 and
5. AIR 1967 Madras 220

concluded on 20th April 2012.  It is also true  and in fact it is stated in paragraph 23A
of  the proposed Amendment    that  the Defendant and her husband were visiting
India   regularly   even   after   filing   of   the   Suit   as   well   as   the   written   statement.
However, as mentioned in the affidavit in support of the Chamber Summons, it is
only when the Defendant met her Advocates  for the purpose of preparing the proof
affidavit  when the above facts necessitating the amendment were pointed out and
the   implications   in   relation   to   such   issues   in   a   specific   performance   suit   was
disclosed to the Defendant,  necessitating in the first instance,  the filing of the proof
affidavit  and  thereafter, when objections were  raised  to  the inclusion of  the  two
paragraphs   in   the   proof   affidavit   and   this   Court     opining  prima   facie    about
tenability of such objections,  that the Defendant on further legal advice proceeded
to file  the present amendment application to amend her written statement.   It is
submitted that though the issue of hardship was raised  in the written statement, the
same is sought to be elaborated in the above facts and circumstances through the
proposed amendment.   It is submitted  that the very nature of the facts sought to be
raised   through   the   amendment   would   indicate   that   the   mere   existence   of   the
knowledge of such facts by the Defendant even prior to the commencement of the
trial or for that matter even at the time of filing of the written statement cannot and
should not preclude the same being raised at this stage since as aforesaid the real
relevance of the issues raised  has come out only at the time of discussions with the
Defendant’s   Advocates   for   preparing   the   proof   affidavit   after   the   evidence   of
Plaintiff No.1 was closed.   Obviously the question of due diligence  therefore has to
be viewed in  the peculiar  facts  and circumstances of  this case  and  the hardship

facing an elderly couple permanently residing in Canada but now over a period of
time spend a larger part of winter in India in their only available residence,  which is
the suit premises, should be allowed to be pleaded. 
9. Referring to Order VI Rule 17 of the CPC, Mr. Joseph submitted that it is true
that  the amendment sought after commencement of the trial is allowed only if the
Court comes to the conclusion that inspite of “due diligence” the party could not
have raised the matter before the commencement of trial.   The bona fides of the
Defendant   are   evident   from   its   affidavit   in   support   of   the   Chamber   Summons
wherein   there   is   no   denial   of   the   knowledge   of   the   facts   necessitating   the
amendment even prior to the commencement of the trial.  However, what is pleaded
and  therefore entitling  the Defendant  to  the exercise of discretion vested in  this
Court in its favour, is the relevance and implications of placing these facts as part of
its pleading could only be gathered during the preparation of the Defendant’s proof
affidavit after the Plaintiff’s evidence had concluded.   It is submitted that it is in
these facts that the amendment was not applied before commencement of the trial.
It is submitted that though the Defendant and her husband have visited India even
after  filing of the written statement and were in India during the evidence of the
first   Plaintiff,     in   the   context   of   the   proposed   amendment     it   is   the   date   of
preparation of its proof affidavit and the understanding of the relevance of the facts
emanating  from  the   proposed   amendment   that  is   relevant  while   analyzing  and
exercising the power vested in this Court under the proviso to  Order VI Rule 17.  It
is, therefore, submitted that inspite of due diligence, the Defendant could not raise

the matter before the commencement of trial.  Mr. Joseph relied on the decision of
the Hon’ble Supreme Court   in  Chander Kanta Bansal vs. Rajinder Singh Anand,6
wherein though the Supreme Court has held that the proviso limits the power to
allow amendment after the commencement of trial but grants discretion to the Court
to allow amendment if it feels that the party could not have raised the matter before
the commencement of trial in spite of due diligence. The Supreme Court has also
held  that  the power  to  allow  amendment    should be liberally exercised  and  the
liberal principles which guide  the exercise of discretion in allowing the amendment
are that multiplicity of proceedings should be avoided, that amendments which do
not totally alter the character of an action should be granted, while care should be
taken   to   see   that   injustice   and   prejudice   of   an   irremediable   character   are   not
inflicted upon the opposite party under the pretence of such an amendment.  The
Hon’ble Supreme Court in the said judgment has also held that whether a party has
acted with due diligence or not would depend upon the facts and circumstances of
each case. Though  this  to some extent does limit  the scope of an amendment to
pleadings, but would still vest  enough powers in the Courts to deal with unforeseen
situations whenever they arise.  The Supreme Court has further held that the proviso
was  not  a  complete  bar  nor  does it  shut  out  entertaining  any later  application
seeking an amendment. The reason for adding the proviso is to curtail delay and
expedite  the   hearing   of   cases.  The  Hon’ble   Supreme   Court   has  referred   to  the
various dictionary meanings of the  words “due diligence”  including the phrase “due
diligence” explained in Words and Phrases by Drain­Dyspnea (Permanent Edition
6 2008 (5) SCC 117

13A)­ “due diligence” in law means doing everything   reasonable, not everything
possible. “Due diligence” means reasonable  diligence; it means such diligence as a
prudent man would exercise in the conduct of his own affairs.  However in that case
the Hon’ble Supreme Court did not allow the amendment on the ground that the
amendment application was filed only after 18 years and  by the said amendment
the Defendant wanted to retract  what she  pleaded in the written statement which
according to the Hon’ble Supreme Court was  with the intention to deprive the claim
of the Plaintiffs. 
10. Mr. Joseph has further submitted that in the instant case , the amendment has
been filed immediately after the Plaintiff’s evidence and before commencement of
the Defendant’s  evidence.    The  amendment  is  in   no   way inconsistent   with  the
original written statement but in fact only elaborates on the issue of hardship raised
in the written statement.  On such an amendment, on the one hand, no prejudice is
caused  to the Plaintiff and on the other a suit for specific performance is effectively
brought to trial and   the discretion vested in this Court under Section   20 of the
Specific Relief Act, 1963 can also be effectively and properly exercised. 
11. Mr. Joseph next relied on the decision of the Hon’ble Supreme Court in  State
of Madhya Pradesh vs. Union  of  India and another7
  where  the Hon’ble Supreme
Court whilst dealing with the provisions of Order VI Rule 17 held in paragraph 8
that  the Courts   while deciding such prayers should not adopt a hyper  technical
7 AIR 2012 SC 2518

approach and that a liberal approach should be the general rule particularly in cases
where the other side can be compensated with costs.  Mr. Joseph further relied on
the decision of the Hon’ble Supreme Court in the matter of  P. Kunjukrishna Pillai vs.
D.Sreekanth Nair  dated 14th July 2008 in Civil Appeal No. 4439 of 2008 wherein the
Hon’ble Supreme Court  whilst allowing  an application sought after the trial had
commenced held that while it is true that the amendment application was not filed
before  the  trial  commenced,  that  by itself  cannot  be  a  ground  for  rejecting  the
application.   The   first   defendant   was   not   attempting   to   put   forth   any   ground
inconsistent with what was stated in the written statement. He was only attempting
to introduce an additional ground and on  the facts and circumstances of the case,
the amendment application was required to be allowed. 
12. Mr. Joseph also relied on the decision of the Hon’ble  Supreme Court in Usha
Balashaheb Swami and others vs. Kiran Appaso Swami and others8
  (  a case where
amendment   application   was  filed  prior  to  commencement  of  trial)  wherein  the
Supreme Court has held that it is settled that in case of amendment  of a written
statement, the Courts are more   liberal in allowing the amendment than that of a
plaint because the question of prejudice would be far less in the former than in the
latter case. In this context, Mr. Joseph has also relied on the decision of the Hon’ble
Supreme Court   in  the  case  of  Baldev  Singh  and  others  vs. Manohar  Singh  and
another
.
8 2007 (5) SCC 602
9 2006 (6) SCC 498

13. Mr. Joseph   submitted  that no doubt   in  the present case, the Plaintiff has
been examined and in that sense the trial has commenced.  However, going by the
aforesaid decisions and the principles laid down therein, the power and discretion
vested in this Court under the proviso to  Order VI Rule 17 deserves to be exercised
in favour of the amendment.  Mr. Joseph has submitted that the Hon’ble Supreme
Court in  the case of  K. Narendra vs. Rivera Apartments (P) Ltd.,10   held  that  the
doctrine  of  comparative  hardship  has been    statutorily  recognized in  India.   He
submitted that the discretion vested in this Court under the Specific Relief Act to
weigh comparative hardship, even in the event of the allegations in  the Plaint of
existence of a concluded contract being accepted, can be effectively and properly
exercised only by allowing the proposed amendment.  
14. Dealing with  the judgments/decisions cited on behalf of  the Plaintiffs, Mr.
Joseph submitted that the ratio of the decision in S.P. Narayanaaswami Pillai (supra)
is that mere increase in the price of the property after the contract cannot constitute
unforeseen hardship (Paragraph 13 of the Judgment).   He submitted that the sum
and substance  of the finding in the  case of Ajendraprasadji N. Pandey vs. Swami
Keshavprakeshdasji N.  (supra)   is  found in  paragraph  14  of  the judgment which
holds: “The proviso is directory and not mandatory and calls for substantial and not
rigid compliance”.   Again in paragraph 54 of  the said decision, it is held  that the
amendment  seeks  to introduce    a  totally new  and inconsistent  case. Mr.  Joseph
10 1999 (5) SCC 77

submits     that   therefore   obviously     where   the   bonafides   are   in   doubt   and   an
inconsistent case is set up, an amendment deserves to be disallowed.  
15.  As regards the judgment/decision in  Vidyabai vs. Padmalatgha (supra) cited
by the Plaintiffs, Mr. Joseph submitted that as can be seen from paragraph 6 of the
said   judgment,   a   specific   finding   was   rendered   that   the   Defendant   was   in   the
knowledge   of   the   facts   narrated     in   the   proposed   amendment.       Relying   on
paragraphs 18 and 19 of the said decision, it is submitted that the Hon’ble Supreme
Court has held therein that it is settled  by a catena of decisions  that the rule of
amendment is essentially  a  rule of justice, equity  and good conscience    and  the
power of amendment should be exercised in the larger interest of doing  full and
complete justice to the parties before the Court and that whilst considering whether
an application for amendment should or should not be allowed, the Court should
not go into the correctness or falsity of the case in the amendment. 
16. Mr. Joseph therefore submitted that the Chamber Summons be allowed with
costs. 
17. Mr. Doctor, the learned Senior Advocate appearing for the Plaintiffs has, in
rejoinder,   submitted   that   the   judgments   cited   by   the   Defendant   in   the   case   of
Chander Kanta Bansal (supra) not only supports the Plaintiffs’ contention that once a
trial commences  on known pleas, no application  for amendment should be allowed
but also further explains   the concept of “due diligence” with reference   to some
dictionary meanings and thus supports the Plaintiffs’ contention that the Defendant

has not satisfied  the conditions precedent of Order VI Rule 17 of  the CPC.   Mr.
Doctor reiterated that the present amendment seeks to introduce facts which have
occurred in  2005, without  giving  any  details  as  to what  care  or  attention    the
Defendant has exercised in order  to bring  the said  facts on record at any earlier
point of time and thus the Defendant does not satisfy the requirements under the
definitions extracted in the judgment. There is no explanation as to why these  facts
are sought to be pleaded after completion of the evidence of Plaintiff No.1, thereby
clearly   showing   that   this   is   nothing   but   an   afterthought   on   the   part   of   the
Defendant. As regards the decision in the case of  K. Narendra vs. Riviera Apartments
(P) Ltd. (supra) relied on by the Defendant, Mr. Doctor submitted that the passage
reflects the position under English Law  which is different from  the position under
Indian law as is evident from Explanation  2 to Section 20 (2) (b) of the Specific
Relief Act.  Mr. Doctor submitted that the case of Baldev Singh and others  (supra)
relied upon by the Defendant   is of no assistance to the Defendant   since in that
particular matter  the Court came  to a  finding of  fact  that  the  trial had   not yet
commenced.   Similarly, the decision in  P. Kunjukrishna Pillai and another    (supra)
renders no assistance   to the Defendant since the said judgment concerns a Civil
Appeal from a Decree dated 10th April 1995  which is prior in point of time to the
amendment to Order VI Rule 17 of the CPC which took place in July 2002.   The
ratio of the judgment therefore would have no application in the facts of the present
case.  Mr. Doctor, therefore, submitted that the Defendant has not made out any case
for the Chamber Summons  being allowed and therefore the same deserves to be
dismissed. 

18. I have considered the submissions advanced by the learned  Senior Advocates
appearing for the parties.  Admittedly, the Chamber Summons seeking amendment
to    the written statement dated 28th  September 2006 is moved by the Defendant
after the commencement of trial and that  there is no specific averment made in the
affidavit in  support of  the Chamber Summons  that in spite of due diligence  the
Defendant could not  have raised the matter before the commencement of trial.  It is
submitted by Mr. Doctor, the learned Senior Advocate appearing on behalf of the
Plaintiffs   that it is a well settled principle of law that when a statute requires a
particular condition to be fulfilled, the party relying on the same must aver that such
a condition has in fact been satisfied.  Unless this mandatory condition is satisfied
the   amendment   in   the   present   case   must   not     be   allowed.    In   support   of   his
submission, he has relied on the decision of a learned single Judge of this Court in
an   unreported   case   between  Air   Control   &   Chemical   Engineering   Co.   Ltd.   Vs.
M/s.Sheetal Ice Factory    (supra) decided on 10th  January, 1973 in A.O. No. 158 of
1972 wherein it is held as under:
“It was sought to be contended by Mrs. Manohar on behalf of the
Appellants that Section 34 does not require that there should be an
averment  to  that effect in  the application, or in  the affidavit in
support of it, but merely requires that the Court should be satisfied
in regard to the readiness and willingness of the applicant at the
material  times.  Even  on  principle,  there is  no  substance in  this
contention  of Mrs. Manohar for whenever  a  statutory  provision
lays  down  a  certain  condition for  the granting  of a  relief, it is
necessary for the plaintiff, or the applicant as the case may be, to

make   averments   to   the   effect   that   those   conditions   have   been
satisfied, and unless such averments are contained in the plaint or
the application, there would be really no cause of action if it is a
plaint, or no case made out if it is an application, for one of the
bundle of essential facts would be  missing.”
Mr. Doctor  submitted that the  decision in Air Control and Chemical Engineering Co.
Ltd.  (supra),  is followed in a subsequent judgment of this Court in Shambhu Nath
Rameshchandra Sarvar (supra). 
19.   Section 34 of the Arbitration Act, 1940 reads as under:
“Power to stay legal proceedings where there is an arbitration
agreement.­    Where   any party to an arbitration agreement or
any person claiming under him commences any legal proceedings
against any other party to the agreement or any person claiming
under him in respect of any matter agreed to be referred, any party
to such legal proceedings may, at any time before filing a written
statement or taking any other steps in the proceedings, apply to the
judicial authority before which the proceedings are pending to stay
the proceedings; and if satisfied that there is no sufficient reason
why  the matter  should  not  be  referred   in accordance with  the
arbitration  agreement  and  that  the  applicant  was,  at  the  time
when  the proceedings were commenced, and still remains, ready
and willing to do all things necessary to the proper conduct of the
arbitration,   such   authority   may   make   an   order   staying   the
proceedings.”
Section   34   of  the   Arbitration   Act   therefore   entitles   any   party  to   an   arbitration

agreement against whom legal proceedings are filed, to move  the Court before filing
a written statement or taking any other  step in the proceeding and point out that
there exists  an arbitration agreement between him and the party who has filed the
legal  proceedings in respect of the subject matter of the suit and therefore the legal
proceedings be stayed.  The Court, before which the legal proceedings are pending,
after being satisfied that there is no sufficient reason why the matter should not be
referred to arbitration in accordance with  the arbitration agreement and that the
applicant was at the time when the proceedings were commenced and still remains
ready and willing to do all things necessary to the proper conduct of the arbitration,
may pass an order staying the   proceedings. Therefore, it is necessary for a party
making an application   to state in his Application that the legal proceedings filed
against him pertain to a matter as regards which there already exists an agreement
between  the  parties  to  refer  the  same  to  arbitration.   The Applicant is  also not
entitled to approach the Court for stay of  the legal proceedings unless the Applicant
at the time when the legal proceedings were commenced and even on the date of
such application is ready and willing to do all things necessary to the proper conduct
of the arbitration. Therefore, the Hon’ble Supreme Court of India in Anderson Wright
Ltd. Vs. Moran & Co.  11   has enunciated  the conditions which are required  to be
fulfilled before a stay under Section 34 of the Arbitration Act can be granted. Their
Lordships at page  55 stated as under:
“Thus in order that a stay may be granted under this Section ( that
is, S. 34  of  the Arbitration Act, 1940), it is necessary  that  the
following conditions should be fulfilled:
11 1955 AIR SC 53

(1)   The proceeding must have been commenced by a party to an
arbitration agreement against any other party to the agreement; 
(2)   The legal proceeding which is sought to be stayed must be in
respect of a matter agreed to be referred;
(3)         The     applicant   for   stay   must   be   a   party   to   the   legal
proceeding and he must have taken no step in the proceeding after
appearance. It is also necessary that he should satisfy the court not
only   that   he   is   but   also   was   at   the   commencement   of   the
proceedings ready and willing  to do everything necessary for the
proper conduct of the arbitration; and 
(4)     the court must be satisfied that there is no sufficient reason
why the matter should not be referred to arbitration in accordance
with the arbitration agreement.”
20. A Division Bench of this Court in Rasiklal Mangaldas Mehta vs. Bai Savita, A.O.
No. 30 of 1955 decided by Chagla CJ. And Dixit, J.  on July 27, 1955  (unreported)
therefore observed  thus:
“ If the defendant approaches the Court and wants the Court  to
hold its hands and not try  a suit and stay it, it is for the defendant
to aver all the allegations which are necessary in order to obtain a
stay of  the suit. The defendant has failed to make  the necessary
averments and on his application for stay he is bound to fail. But
assuming   the   Court   was   indulgent   and   had   permitted   the
defendant to make the necessary allegations even in his affidavit in
rejoinder, he has failed to do so.”
Therefore, as held by the Hon’ble Supreme Court in Anderson Wright Ltd.  (supra),
Section    34  of  the Arbitration Act,  1940 enjoins  an Applicant  to  fulfill    certain

conditions and in the absence of the Applicant stating in his application that the said
conditions have been fulfilled, the application cannot be further entertained. These
are  the conditions which uniformly apply to all applications under Section 34 of the
Arbitration Act and are  required  to be   averred by  the Applicant.   The principle
applicable to Section 34 of the Arbitration Act cannot be applied to the proviso to
Order VI Rule 17 of the CPC where the reasons for an applicant  not being able to
raise the matter before the commencement of trial despite  due diligence would be
different in each case. It is for this reason  that the Hon’ble Supreme Court in the
case of Salem Advocates Bar Association vs. Union of India 12 observed that “….. Now
if application is filed after commencement of trial, it has to be shown that in spite of
due diligence, such amendment could not have been sought earlier”.   Therefore, what
is expected  from the Applicant is that he should show in his application that in spite
of due diligence such amendment could not have been sought earlier,  and it cannot
be said that it is mandatory  on the part of the Applicant to use the  words of the
Section that in spite of due diligence such amendment could not have been  sought
earlier.  Again, as held in Chander Kanta Bansal vs. Rajinder Singh Anand13  “The new
proviso   lays   down   that   no   application   for   amendment   shall   be   allowed   after   the
commencement of trial, 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.
But whether a party has acted with due diligence or not would depend upon the facts
and circumstances of each case”.  In my view, it is therefore clear that in each case
where a party has approached the Court to seek permission of the Court to amend
12 (2005 ) 6 SCC 344
13 (2008) 5 SCC 117

the pleading after  the commencement of trial,  the facts and circumstances would
differ.  The party approaching the Court is therefore required to set out the facts and
circumstances of his case and it is the Court which has to consider such facts and
circumstances  pleaded in each case and come to the conclusion whether or not in
spite   of   due   diligence   the   party   could   have   raised   the   matter   before   the
commencement of trial.  I am therefore of the view that the averment  that in spite
of due diligence the party could not have raised the matter before commencement of
trial is not decisive in itself and the application cannot be simply dismissed on the
ground of absence of such pleading. It is for the Court to decide whether or not the
party could have raised the matter after exercise of due diligence, having regard to
the pleadings made in that behalf. 
21. The next question that arises for  determination is whether the Defendant has
made out a case that the Defendant could not have raised the matter before the
commencement of trial inspite of due diligence.  
22. In paragraph 20 of the written statement affirmed by the Defendant on 28th
September 2006, it is inter alia contended as follows:
“20. ……  It is disputed that the Plaintiffs are entitled for a decree
of specific performance as prayed for…..”
In paragraph 21, it is inter alia further contended as follows:
“21……   It is disputed that if this Hon’ble Court grants the relief

prayed   for   no   harm   or   loss   or     injury   will   be   caused   to   the
Defendant   or   the   balance   of   convenience   is   in   favour   of   the
Plaintiffs.”
The paragraphs proposed to be added as Paragraphs 23A and 23 B in the written
statement and the issue proposed to be framed are as set out hereunder:
“23A.  It is also from our perspective, important to place on record
certain developments, I am aged 82 years and my wife is aged 76
years. We have three children, all daughters, none of whom have
any premises owned and/or in  their possession in  India.  It also
needs to be stated that all of us currently reside abroad. In the year
2004, none of us contemplated returning to India, though my wife
had even  then expressed  the desire  to return  to  India. However,
with the passing years and the fact of not being physically able to
do  the daily household care and maintenance ourselves and  the
non availability of domestic help in Canada we (my wife and I)
have definitely decided to at least spend the better part of winter in
India,   particularly   on   account   of   tough   conditions   in   Canada.
Further   on   6th  July,   2005   I   suffered   a   heart   attack   and   my
cardiologist has recommended/instructed to avoid the harsh cold
weather of Canada and opt for a warmer and gentler climate.  It is
therefore  our  wish  and intention  now  to  spend  the months  of
November to April in India at our home which is the subject matter
of the present Suit. 
23B.    In  this context  therefore  though in  the circumstances and
facts   prevailing   in   2004­2005   we   had   nursed   the   prospects   of
selling  the  suit  premises,  we  did  not  even  enter into  any  such
Agreement.  In any event at this point of time, we have absolutely

no  such intentions, in fact  require  the  suit  property,  which,  as
aforementioned is our only owned and possessed premises in India.
We have been residing in the suit property all these years on our
visits to India, and now need the same as our permanent long term
residence in India, where our children and grandchildren can also
visit and stay. It is therefore respectfully  submitted that we will be
extremely prejudiced and inconvenienced if we are forced to part
with the ownership and possession of suit property.”
From paragraphs  23A of the proposed amendment it is clear that in the year 2004,
the Defendant and her husband  did not contemplate returning to India.  However,
with the passage of time, they have definitely decided to at least spend the better
part of winter in India.  In July 2005, the husband of the Defendant suffered a heart
attack and his Cardiologist had recommended/instructed him to avoid the harsh cold
weather of Canada and opt for a warmer and gentler climate.  Due to these health
reasons and non­availability of domestic help, the Defendant and her husband have
been visiting India regularly and it is therefore their wish and intention “now”   to
spend the months of November to April in India in the suit flat.  From paragraph 23B
of the proposed amendment it is clear that the case sought to be made out is that the
Defendant and her husband are residing in  the suit property all  these years only
during their visit to India and    “now”    the Defendant and her husband need the
same  as  their permanent long  term  residence in  India, where  their children  and
grand­children can also visit and stay with them, and therefore the Defendant and
her husband   will be gravely prejudiced and inconvenienced if they are forced to
part with the ownership and possession of the suit property.  The Defendant has in

her affidavit in support of the Chamber Summons stated that the written statement
was filed by 28th September 2006. Thereafter, she and her husband have continued
to reside in Canada though regular visits are also made to India.  Before the suit was
listed   for   filing   of   evidence   and   cross­examination,   her   husband   held   elaborate
discussions   with   her   Advocates   and  in   the   course   of   preparing   the   affidavit   of
evidence the facts incorporated in paragraphs 8 and 9 of the affidavit of evidence
dated 26th April, 2012 (now annexed as paragraphs 23A and 23B at Schedule­A to
the Chamber Summons) were  for  the  first  time disclosed  to  the Advocates.   The
Defendant’s Advocates then advised that specific performance being a discretionary
relief, the said facts would have to be placed before this Court and accordingly the
affidavit of evidence dated 26th  April  2012 was filed bringing the aforesaid facts.
However  since the Advocates for the Plaintiffs objected to the said two paragraphs
being part of affidavit of evidence,  the Advocate  for  the Defendant proceeded  to
move   the   Court   seeking   amendment   of   the   written   statement   and   to   raise   an
additional issue  and  accordingly  the  present  Chamber  Summons  along  with  the
affidavit in support is filed. 
23. In paragraphs  9  to 12  and 15 of  the  affidavit in  support of  the Chamber
Summons, the  Defendant has stated as follows:
“9.   It is submitted  that  the very nature of the Amendment
would not cause any prejudice to the Plaintiff as the same does
not affect the facts or the nature of the Plaintiffs version of the
case. The facts narrated in the said paragraphs are effectively
subsequent events/developments which were brought on record

at the earliest available opportunity. 
10. I say and submit that the proposed amendment and
the proposed additional issue will enable this Hon'ble Court to
effectively   try     the   whole   case   on   the   merits   and   render
complete   justice,   and   it   is   submitted   that   an   opportunity
should be afforded by allowing the amendment and adding the
issue.
11. I   say   and   submit   that   the   very   nature   of   the
proposed amendment and  the proposed additional issue will
indicate   the   importance   and   the   need   for   the   same.     The
application have been necessitated by subsequent events and
personal decisions.
12. I further say and submit that considering the facts
and   circumstances   the   Defendant   could   also   obtain   proper
legal advise only at this later stage necessitating the present
application.
15.       It  is  further   respectfully   submitted  in   the   facts   and
circumstances there is no wilful latches and negligence on the
part   of   the   Defendant   and   raising   the   amendment   and
additional   issue   which   have   all   been   necessitated   due   to
subsequent   development   and   change   in   circumstances.
Further,     in   the   present   facts   emanating   in   the   case,   the
proposed amendment and  the  proposed additional issue are
necessary to enable a proper and legal exercise of discretion by
this Hon'ble Court balancing the equities on both sides in the
context of present Suit being a Suit for Specific Performance.”

24. The Hon’ble  Supreme Court in its  decision   in  Chander Kanta  Bansal  vs.
Rajinder Singh Anand  (supra) has in paragraphs 11 to 16 analysed the scope and
effect of Order VI Rule 17 and it is inter alia held as follows:
 “11.   The proviso limits the power to allow amendment after
the commencement of trial but grants discretion to the court to
allow amendment if it feels that the party could not have raised
the matter  before  the  commencement  of  trial in  spite  of  due
diligence. It is true that the power to allow amendment should
be  liberally  exercised.  The  liberal  principles  which   guide  the
exercise   of   discretion   in   allowing   the   amendment   are   that
multiplicity of proceedings should be avoided, that amendments
which do not totally alter the character of an action should be
granted, while care  should be  taken  to see  that injustice and
prejudice of an irremediable character are not inflicted upon the
opposite party under pretence of amendment….
12…..   The   new   proviso   lays   down   that   no   application   for
amendment shall be allowed after the commencement of trial,
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. But whether a party has acted with due
diligence or not would depend upon the facts and circumstances
of  each  case.  This  would,  to  some  extent, limit  the  scope  of
amendment to pleadings, but would still vest enough powers in
courts  to  deal  with   the  unforeseen  situations  whenever   they
arise.
13…..Once, the trial commences on the known pleas, it will be
very difficult for any side to reconcile. In spite of the same, an
exception is made in   the  newly  inserted  proviso   where  it  is

shown that in spite of due diligence, he could not raise a plea, it
is for  the  court  to  consider  the  same.  Therefore, it is  not  a
complete bar nor shuts out entertaining of any later application.
As stated earlier, the reason for adding proviso is to curtail delay
and expedite hearing of cases.
15.    As discussed above, though first part of Rule 17 makes it
clear that amendment of pleadings is permitted at any stage of
the proceeding, the proviso imposes certain restrictions. It makes
it clear that after the commencement of trial, no application for
amendment shall be allowed. However, if it is established that in
spite  of   "due   diligence"   the   party  could   not  have   raised   the
matter   before   the   commencement   of   trial   depending   on   the
circumstances, the court is free to order such application. 
16.       The words  "due diligence" has not been defined in  the
Code. According to Oxford Dictionary (Edition 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   Black's   Law
Dictionary (Eighth Edition), "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 Drain­Dyspnea (Permanent Edition 13A) "due diligence", in
law,   means   doing   everything   reasonable,   not   everything
possible.  "Due diligence" means reasonable diligence; it means
such diligence as a prudent man would exercise in the conduct
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KPP 28 CHS No. 867 of 2012
of his own affairs” 
As defined in words and phrases by  Drain­Dyspnea (Permanent Edition 13A) “due
diligence” in law means doing everything  reasonable, not everything possible. Due
diligence means reasonable   diligence, it means such diligence as a prudent man
would exercise in the conduct of his own affairs.    The Defendant has in her written
statement denied the allegation made by the Plaintiffs in their plaint  that the reliefs
sought   by   the   Plaintiffs,   if   granted,   shall   cause   no   harm   loss   or   injury   to   the
Defendant. As  stated in  paragraph  4  of  the  affidavit in  support  of  the Chamber
Summons,  after  the written  statement was  filed  by  the Defendant,  she  and  her
husband continued to reside in Canada though regular visits were made to India.
However, her husband met her Advocate before the suit was listed before the Court
for filing of her evidence and cross­examination and held elaborate discussions with
her Advocates.  In the course of preparing the affidavit of evidence,  for the first time
she disclosed  to the Advocates that in the year 2004, they had not contemplated
returning to India though the Defendant had expressed her desire to return to India.
However, with passage of time and  physically being incapable of  carrying on their
daily   household   chores   particularly   due   to   non­availability   of   domestic   help   in
Canada, the  Defendant and her husband have definitely decided to at least spend
the better part of winter in India particularly on account of the tough weather and
other conditions in Canada.    In fact,  the Cardiologist of the Defendant when she
suffered a heart attack on 6th July 2005 had recommended/instructed her to avoid
the harsh cold weather of Canada and opt for a warmer and gentler climate.   It is
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KPP 29 CHS No. 867 of 2012
therefore  “now”  their intention to spend the months of November to April in India
at their home which is the subject matter of the present suit.  The Advocates were
also informed that the Defendant and her husband are residing in the suit property
during their visits to India and “now”  need the same as their permanent long term
residence in India. It is therefore clear that with the passing years, the Defendant
and her husband did feel that they will have to spend  substantial time during winter
in India in the suit premises and that now they have taken  a decision to reside in
the suit flat during the months of November to April.  The Advocates after learning
these facts from the husband of the   Defendant advised that specific performance
being a discretionary relief, the said  facts should be placed before the Court and
accordingly  the  affidavit of evidence dated  26th  April, 2012 was  filed  before  the
Court.  Since  the  Plaintiffs  objected  to  the incorporation  of  the  said  facts in  the
affidavit of evidence, the Defendant took out the present Chamber Summons seeking
amendment of the written statement for incorporating the above two paragraphs in
the written statement.   The suit, after the written statement dated 28th September
2006 was taken on record by an order dated 31st March 2008, came up for hearing
before this Court on 13th  February 2012 when the issues were framed.  It is a known
fact that the suits are taken up for hearing and final disposal in Courts  several years
after the date of its filing.  Once an interim application is disposed of and/or the
written statement is filed, the clients do not meet the Advocates until summoned by
their Advocates.  The Defendant  has  also met  the Advocates  and  had  a  detailed
meeting   with   them   only   at   the   time   of   preparation   of   her   evidence   when   she
informed  the Advocates about  the problems qua  the Defendant and her husband

residing  permanently in Canada  and only visiting  India intermittently  and  about
their   intention   now   to   permanently   reside   in   India   in   the   suit   premises   from
November to April.    In my view, it would be too much to expect of a prudent man
to be mindful  of the consequences of having decided to reside in the suit property
more  often  and  for longer  durations   from   the  stand  point  of  pleadings  on  the
question of comparative hardship i.e.  a specific performance suit and accordingly
inform   his   advocate   immediately   upon   having   so   decided.     It   is   very   much
reasonable for a prudent man to become aware of the significance of such a decision
from the point of view of the law of pleadings only after discussing the same in the
context of his oral evidence with his  advocate.    In  fact, even  the lawyers of  the
Defendant initially felt that these facts can be incorporated in the evidence and there
was no need  to file an additional written statement or amend the earlier written
statement to incorporate  these facts.   Under these circumstances, the Defendant is
not expected to understand the relevance of her decision to stay in the suit flat for a
period of six months in a year instead of certain visits during a year and therefore
rush to her Advocates to give the said information. The Defendant has, as is prudent,
informed her Advocate  during detailed discussions held with her advocates at the
time   of   preparation   of   her   evidence   resulting   in   the   Advocates   explaining   the
relevance  of  such  change in  circumstances/decision  and  taking immediate  steps
thereon.   Therefore,  I am of  the view  that  the Defendant has  shown  reasonable
diligence which a prudent person would exercise in the conduct of his own affairs
and I am satisfied that the Defendant could not have raised the issue of hardship
before the commencement of trial inspite of due diligence.  

 25. I   am   also   of   the   view   that   allowing   the   amendment   will   not   alter   the
character of the suit in any  manner nor will any injustice and prejudice be caused to
the Plaintiffs.   It is held by the Hon’ble Supreme Court in  Chandeer Kanta Bansal
(supra) that under such circumstances the power to allow the amendment should be
liberally exercised. Again, as held in the said decision by the Hon’ble Supreme Court,
that  the proviso  to Order VI Rule 17 is not a complete bar nor does it shut out
entertaining   of   any   latter   amendment   applications.   The   reason   for   adding   the
proviso, as held by the Apex Court, is only to curtail delay and expedite hearing of
cases.  In the instant case, the Defendant has always co­operated with the Plaintiffs
and has  at no time made any attempt to delay the hearing of the suit. 
26. As held by the Hon’ble Supreme Court in its decision in the case of State of
Madhya Pradesh vs. Union of India and another14  though the proviso, to some extent,
curtails absolute discretion to allow amendment at any stage, the purpose and object
of Order VI Rule 17  of  the CPC   is  to  allow either  party  to  alter  or  amend  his
pleadings in such a manner and on such terms as may be just.   Amendment cannot
be claimed as a matter of right, but at the same time the  Courts, while deciding
such  prayers,    should  not  adopt  a  hyper  technical  approach.    Liberal  approach
should   be   the   general   rule   particularly   in   cases   where   the   other   side   can   be
compensated with costs.  In fact in the case  of Ajendraprasadji N. Pandey vs. Swami
Keshavprakeshdasji N. (supra) , the Hon’ble Supreme Court has in paragraph 14 held
14 AIR 2012 SC 2518
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that “the proviso is directory and not mandatory and calls for substantial and not rigid
compliance.” 
27. The relief of specific performance is a discretionary relief and Section 20 (2)
(b) of the Specific Relief Act, 1963 provides that the Court may properly exercise
discretion not to decree specific performance  where the performance of the contract
would involve some hardship  on the defendant which  he did not foresee, whereas
its non­performance would involve no such hardship on the Plaintiff.  By the present
amendment, the Defendant seeks to point out the hardship that would be caused to
her   in   the   event     the   reliefs   claimed   by   the   Plaintiffs   are   granted.   Such   an
amendment is therefore necessary to decide the real  disputes between the parties.
The  question  therefore  whether   the  performance   of   the  contract   would  involve
hardship on the defendant within the meaning of clause (b) as set out in explanation
(2) of Section 20 of the Specific Relief Act is an issue which will be subsequently
decided on merits.  The Hon’ble Supreme Court in the case of Rajesh Kumar Agarwal
(supra)  has inter  alia  held in  paragraph  19  that while  considering   whether  an
application for amendment should or should not be allowed, the Court should not go
into the correctness or falsity of the case in the amendment.  Likewise, it should not
record a finding on the merits of  the amendment. The merits of  the amendment
sought to be incorporated by way of an amendment are not to be adjudged at the
stage of allowing the prayer for amendment.  
28. In the circumstances I am of the view that if the amendments sought by the
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KPP 33 CHS No. 867 of 2012
Defendant are  allowed, no prejudice will be caused to the Plaintiffs, whereas if the
said amendments are not allowed, grave and irreparable harm, loss, damage, injury
and prejudice will be caused to the Defendant who, as already stated hereinabove,
has acted with such diligence as a prudent man would exercise in the conduct of his
own affairs.  Chamber Summons is therefore allowed in terms of prayer clauses (a)
and  (b).    However, in  order  to  ensure  that    the  Plaintiffs  are  not in  any  way
prejudiced, the Plaintiffs are allowed to adduce additional evidence on the amended
written statement before the Defendant leads her evidence.  Defendant shall also pay
costs quantified at Rs. 1,00,000/­ to the Plaintiffs. Amendment to be carried out on
or before 31st March,2013. The Chamber Summons is accordingly disposed of.
(S.J. KATHAWALLA, J.)
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KPP 1 CHS No. 867 of 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 867 OF 2012
IN
SUIT  NO. 603 OF 2005
Perviz J. Modi                        … Applicant/
                  (Orig. Defendant)
In the matter between: 
1. Rohit A. Kapadia        )
2. Sandhya R. Kapadia, both of Mumbai, Indian Inhabitants,        )
    residing at 12­B, Paradise Apartments, 44 Nepean Sea Road,    )
    Mumbai­400 036                 )...Plaintiffs
        vs.
Perviz J. Modi, having her address at C­32, 3rd floor,                      )
C­Block, Darshan Apartments, Mount Pleasant Road,        )
Mumbai­400 006       )..Defendant
Mr.   Saleh   Doctor,   Senior   Advocate,   along   with   Mr.   Pradeep   Sancheti,   Senior
Advocate, Mr. Atit Shukla, Mr. Robin Jaisinghani, and Mr. Mitesh Naik, instructed by
M/s. Dhru & Co., for the Plaintiffs. 
Mr. Joseph Kodianthara, Senior Advocate, instructed  by   Ricab Chand K,  for  the
Defendant. 
CORAM:    S.J. KATHAWALLA, J.
Judgment reserved on      : February 18, 2013
Judgment pronounced on : March  20, 2013
JUDGMENT:
1. The Plaintiffs have filed the above suit against the Defendant for a declaration
that the concluded contract in terms of the unsigned MOU being Exhibit­O to the
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Plaint, arrived at between the Plaintiffs and the Defendant is valid, subsisting and
binding on the Defendant and the Defendant be ordered and decreed to specifically
perform the said concluded contract  and for the said purpose to do all acts, deeds
and things and execute all necessary documents, papers, applications, etc. 
2. In September 2006,  the Defendant  took out Notice of Motion No. 3818 of
2006 to condone the delay of 465 days in filing the written statement.  By an order
dated    31st  March  2008,  the  said Notice  of   Motion was  allowed  by  this Court
(Coram: S.C. Dharmadhikari, J.)  and the written statement dated 28th  September
2006 was taken on record. 
3. From  the  roznama it appears  that after  the   written statement   dated 28th
September  2006 was  taken  on  record,  the  suit  came  up  on  Board  only  on  13th
February 2012, when issues were  framed   in  the  above  suit;  the Plaintiffs were
directed   to   file   their   affidavit   of   evidence,   affidavit   of   documents   along   with
compilation of documents  on or  before 27th  February 2012;    the Defendant was
directed to file  her affidavit of documents along with compilation of documents on
or before 27th February 2012 and the matter was adjourned to 5th October 2012 for
admission and denial of documents.  On 5th March 2012, the documents submitted
on behalf of the Plaintiffs were marked and on 20th  April 2012, the Plaintiff No.1
was cross­examined by the Advocate appearing for the Defendant.  In the meantime,
on  31st March 2012, 8 documents were tendered on behalf of the Defendant which
were marked as Exhibits/for identification.  The cross­examination of the Defendant
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was  fixed  on  27th  April  2012.   On  that  day,  the Defendant was  ready with  the
affidavit  of evidence.    The  Learned  Senior Advocate  appearing  for  the  Plaintiffs
objected to the contents contained in paragraphs 7 and 8 of the affidavit of evidence
on  the  ground  that  the  same  were  not  found in  the  written    statement  of  the
Defendant. The  Learned Senior Advocate  appearing  for  the Defendant submitted
that the necessary averments to the effect (a) that the Plaintiffs are not entitled for a
decree of specific performance and (b) that granting of reliefs as prayed for by the
Plaintiffs will cause harm, loss  or injury to the Defendant, are already made in the
written   statement     by   the   Defendant.     The   Learned   Senior   Advocate   further
submitted  that    the  facts  contained in  paragraphs  7  and  8  have  surfaced   very
recently i.e. in the meeting held by the Defendant and her husband (who are very
elderly persons) with their Advocates  for preparation of the affidavit of evidence,
and have accordingly been incorporated in the affidavit of evidence in support of the
aforesaid averments. This Court   was   prima facie  of  the view  that  the objection
raised on behalf of the Plaintiffs may be  tenable and therefore the learned Senior
Advocate appearing for the Defendant could consider the possibility of incorporating
the contents of paragraphs 7 and 8 through an amendment to the written statement.
4.   The Defendant  has  thereafter  taken  out  the  present   Chamber  Summons
seeking to amend the written statement  dated 28th September 2006, to the extent of
incorporating   the   contents   of   the   two   paragraphs   contained   in   the   Affidavit   of
evidence. What is sought to be introduced by the Defendant by way of the present
amendment to the written statement is the fact that she and her husband who are
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76  and  82 years  old  respectively,  due  to  the extreme  cold weather  and lack  of
domestic   help  in  Canada,  have  decided   to  stay  in  India  at   the    suit   flat  from
November  to April and if  they are directed  to specifically perform  the purported
Agreement as prayed for by  the Plaintiffs,  the same will cause grave hardship  to
them.    The Chamber Summons is now taken up for hearing and final disposal.
5. Mr. Saleh Doctor,  the Learned Senior Advocate appearing for the Plaintiffs,
has submitted that the amendment is sought to be introduced by the Defendant to
her  written  statement   admittedly  after  the  commencement  of  the  trial.    In  the
affidavit in support of the Chamber Summons, there is no averment that the matter
sought to be introduced by the proposed amendment could not have been brought
on record despite exercise of due diligence, which fact is required   to be averred
and the application is bound to be rejected in the absence  of such an averment.   He
submitted that it is a well settled principle of law that when a statute requires a
particular condition to be fulfilled, the party relying on the same must aver that such
condition has in fact been satisfied.  He submitted that the Defendant in the present
Chamber  Summons  or in  the  affidavit in  support  thereof  has  failed  to make  an
averment and explain all relevant facts as to what due diligence was exercised by
the Defendant earlier, despite which the Defendant could not move the amendment.
He  submitted  that  unless  this mandatory  condition  is  satisfied,  the  amendment
cannot  be  allowed.     Mr. Doctor in  support  of  this  contention  has  relied  on  an
unreported decision of a learned single judge of this court in the case of Air control
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& Chemical Engineering Co. Ltd. vs. M/s. Sheetal  Ice Factory1 which is followed by
another learned Single Judge of this Court in Shambhu Nath Rameshchandra Sarvar
vs.Surendra Manilal Jhaveri2.  
6. Mr. Doctor further submitted that it is now  well settled that in view of the
proviso  to Order 6 Rule 17  of  the Civil  Procedure Code,  1908 (“the CPC”),  the
Court's jurisdiction  to allow  the amendment   after commencement of  the  trial is
taken away unless the party applying for amendment satisfies the Court that in spite
of due diligence the matter sought to be introduced by way of an amendment could
not be raised before commencement of the trial.  In support of his contention, Mr.
Doctor relied on the decisions of the Hon'ble Supreme Court in Vidyabai and others
vs.   Padmalatha   and   another3
    and  Ajendraprasadji   N.   Pandey   vs.   Swami
Keshavprakash4
.  Mr. Doctor submitted that  in the present case the facts constituting
the alleged hardship appear to arise out of events alleged to have happened in July,
2005.  The Defendant affirmed her written statement in September 2006 and the
same was filed on 7th April 2008. Therefore, the Defendant could have taken the said
plea of hardship in the written statement itself.  On 13th February 2012, issues were
framed in  the  present  case.  On  27th  February  2012,  the  Plaintiff  No.1  filed  his
affidavit in lieu of examination­in­chief . Cross­examination was completed on 20th
April   2012.   The   Defendant's   husband   was   present   in   Court   during   the   cross­
examination     of   the   Plaintiff   No.1.       The   Defendant   and   and/or   her   husband
1 Decided on 10th January, 1973 in AO No. 158 of 1972
2LXXX BLR 34
3 (2009) 2 SCC 409
4(2006) 12 SCC 1
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admittedly   visited     India   on   occasions     even   prior   thereto.  The  Defendant   has
belatedly taken out the present Chamber Summons after commencement of the trial
and that too without even offering any explanation (much less a cogent one) as to
the  fact  that “in spite of due diligence”  the Defendant could not have raised the
matter before “commencement of trial”.  Mr. Doctor has submitted that therefore the
conduct  of the Defendant clearly shows that the amendment sought to be made is
nothing   but   an   afterthought.     It   is   submitted   that   it   is   inconceivable   that   the
Defendant would not have instructed her lawyers  to do  so,  at least prior  to  the
commencement of the cross examination of the Plaintiff No.1. In any event, there is
no explanation as to why the facts sought to be introduced at this belated stage,  i.e.
after completion  of the evidence of Plaintiff No.1, could not be raised earlier.  It is
submitted  that  therefore  the pre­condition  for exercise of  the Court's jurisdiction,
viz. concerning  “due diligence” has not been  satisfied by  the Defendant.    In  the
absence of the same, therefore, this Court would not have jurisdiction to consider
the present Chamber Summons for amendment.  
7. Mr. Doctor next submitted  that the facts sought to be pleaded by the present
Chamber   Summons   are   not   necessary   for   the   purpose   of   determining   the   real
question   in   controversy   between   the   parties.     By   the   present   amendment,   the
Defendant is seeking to introduce   facts which occurred in July, 2005 which   are
subsequent to the date of the contract.  He submitted that the  question of hardship
in a contract is to be judged at  the  time it was entered into.    In support of  this
contention, he has relied on explanation 2 of Section 20 (2) (b) of the Specific Relief
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Act,   1963   and   a   decision   of   the   Madras   High   Court   in   the   matter   of  S.P.
Narayaaswami Pillai vs. Dhanakoti Ammal5
.  Mr. Doctor submitted that there is no
allegation   that   the   Plaintiffs   have   committed   any   act   to   cause   hardship   to   the
Defendant.  The question of hardship has to be judged with reference to the facts as
on   the   date   of   the   contract.     Mr.   Doctor,   therefore,   submitted   that   in   the
circumstances, the Chamber Summons deserves to be dismissed with costs. 
8. Mr.   Joseph   Kodianthara,   the   Learned   Senior   Advocate   appearing   for   the
Defendant,  submitted  that  the  above  suit is  filed  for  specific  performance  of  an
alleged   oral   agreement   stated   to   be   entered   into   between   the   Plaintiffs   as   the
Purchasers and the Defendant as the Seller.  Therefore the existence of a concluded
contract as between the Plaintiffs and the Defendant is itself in dispute.  However,
considering  the  scope  and  ambit  of  a  specific  performance  suit,  the  question  of
comparative hardship is  also  an issue  that can be  raised even  assuming without
admitting the existence of a concluded contract between the parties.  It is submitted
that the present Chamber Summons has been filed under Order VI Rule 17 of the
CPC  for amending the written statement and consequently for raising an additional
issue viz. “Whether  the Plaintiffs prove that they are entitled  to a decree of specific
performance?       Mr. Joseph has  taken me  through paragraphs   20 and 21 of  the
written statement  dated 28th September 2006 and paragraphs 5, 6, 7, 11, 12, 13, 15
and 16 of the affidavit in support of the Chamber Summons and has submitted  that
it is true that the evidence of the Plaintiff No.1 commenced on 5th March 2012 and
5. AIR 1967 Madras 220
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concluded on 20th April 2012.  It is also true  and in fact it is stated in paragraph 23A
of  the proposed Amendment    that  the Defendant and her husband were visiting
India   regularly   even   after   filing   of   the   Suit   as   well   as   the   written   statement.
However, as mentioned in the affidavit in support of the Chamber Summons, it is
only when the Defendant met her Advocates  for the purpose of preparing the proof
affidavit  when the above facts necessitating the amendment were pointed out and
the   implications   in   relation   to   such   issues   in   a   specific   performance   suit   was
disclosed to the Defendant,  necessitating in the first instance,  the filing of the proof
affidavit  and  thereafter, when objections were  raised  to  the inclusion of  the  two
paragraphs   in   the   proof   affidavit   and   this   Court     opining  prima   facie    about
tenability of such objections,  that the Defendant on further legal advice proceeded
to file  the present amendment application to amend her written statement.   It is
submitted that though the issue of hardship was raised  in the written statement, the
same is sought to be elaborated in the above facts and circumstances through the
proposed amendment.   It is submitted  that the very nature of the facts sought to be
raised   through   the   amendment   would   indicate   that   the   mere   existence   of   the
knowledge of such facts by the Defendant even prior to the commencement of the
trial or for that matter even at the time of filing of the written statement cannot and
should not preclude the same being raised at this stage since as aforesaid the real
relevance of the issues raised  has come out only at the time of discussions with the
Defendant’s   Advocates   for   preparing   the   proof   affidavit   after   the   evidence   of
Plaintiff No.1 was closed.   Obviously the question of due diligence  therefore has to
be viewed in  the peculiar  facts  and circumstances of  this case  and  the hardship
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facing an elderly couple permanently residing in Canada but now over a period of
time spend a larger part of winter in India in their only available residence,  which is
the suit premises, should be allowed to be pleaded. 
9. Referring to Order VI Rule 17 of the CPC, Mr. Joseph submitted that it is true
that  the amendment sought after commencement of the trial is allowed only if the
Court comes to the conclusion that inspite of “due diligence” the party could not
have raised the matter before the commencement of trial.   The bona fides of the
Defendant   are   evident   from   its   affidavit   in   support   of   the   Chamber   Summons
wherein   there   is   no   denial   of   the   knowledge   of   the   facts   necessitating   the
amendment even prior to the commencement of the trial.  However, what is pleaded
and  therefore entitling  the Defendant  to  the exercise of discretion vested in  this
Court in its favour, is the relevance and implications of placing these facts as part of
its pleading could only be gathered during the preparation of the Defendant’s proof
affidavit after the Plaintiff’s evidence had concluded.   It is submitted that it is in
these facts that the amendment was not applied before commencement of the trial.
It is submitted that though the Defendant and her husband have visited India even
after  filing of the written statement and were in India during the evidence of the
first   Plaintiff,     in   the   context   of   the   proposed   amendment     it   is   the   date   of
preparation of its proof affidavit and the understanding of the relevance of the facts
emanating  from  the   proposed   amendment   that  is   relevant  while   analyzing  and
exercising the power vested in this Court under the proviso to  Order VI Rule 17.  It
is, therefore, submitted that inspite of due diligence, the Defendant could not raise
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the matter before the commencement of trial.  Mr. Joseph relied on the decision of
the Hon’ble Supreme Court   in  Chander Kanta Bansal vs. Rajinder Singh Anand,6
wherein though the Supreme Court has held that the proviso limits the power to
allow amendment after the commencement of trial but grants discretion to the Court
to allow amendment if it feels that the party could not have raised the matter before
the commencement of trial in spite of due diligence. The Supreme Court has also
held  that  the power  to  allow  amendment    should be liberally exercised  and  the
liberal principles which guide  the exercise of discretion in allowing the amendment
are that multiplicity of proceedings should be avoided, that amendments which do
not totally alter the character of an action should be granted, while care should be
taken   to   see   that   injustice   and   prejudice   of   an   irremediable   character   are   not
inflicted upon the opposite party under the pretence of such an amendment.  The
Hon’ble Supreme Court in the said judgment has also held that whether a party has
acted with due diligence or not would depend upon the facts and circumstances of
each case. Though  this  to some extent does limit  the scope of an amendment to
pleadings, but would still vest  enough powers in the Courts to deal with unforeseen
situations whenever they arise.  The Supreme Court has further held that the proviso
was  not  a  complete  bar  nor  does it  shut  out  entertaining  any later  application
seeking an amendment. The reason for adding the proviso is to curtail delay and
expedite  the   hearing   of   cases.  The  Hon’ble   Supreme   Court   has  referred   to  the
various dictionary meanings of the  words “due diligence”  including the phrase “due
diligence” explained in Words and Phrases by Drain­Dyspnea (Permanent Edition
6 2008 (5) SCC 117
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13A)­ “due diligence” in law means doing everything   reasonable, not everything
possible. “Due diligence” means reasonable  diligence; it means such diligence as a
prudent man would exercise in the conduct of his own affairs.  However in that case
the Hon’ble Supreme Court did not allow the amendment on the ground that the
amendment application was filed only after 18 years and  by the said amendment
the Defendant wanted to retract  what she  pleaded in the written statement which
according to the Hon’ble Supreme Court was  with the intention to deprive the claim
of the Plaintiffs. 
10. Mr. Joseph has further submitted that in the instant case , the amendment has
been filed immediately after the Plaintiff’s evidence and before commencement of
the Defendant’s  evidence.    The  amendment  is  in   no   way inconsistent   with  the
original written statement but in fact only elaborates on the issue of hardship raised
in the written statement.  On such an amendment, on the one hand, no prejudice is
caused  to the Plaintiff and on the other a suit for specific performance is effectively
brought to trial and   the discretion vested in this Court under Section   20 of the
Specific Relief Act, 1963 can also be effectively and properly exercised. 
11. Mr. Joseph next relied on the decision of the Hon’ble Supreme Court in  State
of Madhya Pradesh vs. Union  of  India and another7
  where  the Hon’ble Supreme
Court whilst dealing with the provisions of Order VI Rule 17 held in paragraph 8
that  the Courts   while deciding such prayers should not adopt a hyper  technical
7 AIR 2012 SC 2518
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approach and that a liberal approach should be the general rule particularly in cases
where the other side can be compensated with costs.  Mr. Joseph further relied on
the decision of the Hon’ble Supreme Court in the matter of  P. Kunjukrishna Pillai vs.
D.Sreekanth Nair  dated 14th July 2008 in Civil Appeal No. 4439 of 2008 wherein the
Hon’ble Supreme Court  whilst allowing  an application sought after the trial had
commenced held that while it is true that the amendment application was not filed
before  the  trial  commenced,  that  by itself  cannot  be  a  ground  for  rejecting  the
application.   The   first   defendant   was   not   attempting   to   put   forth   any   ground
inconsistent with what was stated in the written statement. He was only attempting
to introduce an additional ground and on  the facts and circumstances of the case,
the amendment application was required to be allowed. 
12. Mr. Joseph also relied on the decision of the Hon’ble  Supreme Court in Usha
Balashaheb Swami and others vs. Kiran Appaso Swami and others8
  (  a case where
amendment   application   was  filed  prior  to  commencement  of  trial)  wherein  the
Supreme Court has held that it is settled that in case of amendment  of a written
statement, the Courts are more   liberal in allowing the amendment than that of a
plaint because the question of prejudice would be far less in the former than in the
latter case. In this context, Mr. Joseph has also relied on the decision of the Hon’ble
Supreme Court   in  the  case  of  Baldev  Singh  and  others  vs. Manohar  Singh  and
another9
.
8 2007 (5) SCC 602
9 2006 (6) SCC 498
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13. Mr. Joseph   submitted  that no doubt   in  the present case, the Plaintiff has
been examined and in that sense the trial has commenced.  However, going by the
aforesaid decisions and the principles laid down therein, the power and discretion
vested in this Court under the proviso to  Order VI Rule 17 deserves to be exercised
in favour of the amendment.  Mr. Joseph has submitted that the Hon’ble Supreme
Court in  the case of  K. Narendra vs. Rivera Apartments (P) Ltd.,10   held  that  the
doctrine  of  comparative  hardship  has been    statutorily  recognized in  India.   He
submitted that the discretion vested in this Court under the Specific Relief Act to
weigh comparative hardship, even in the event of the allegations in  the Plaint of
existence of a concluded contract being accepted, can be effectively and properly
exercised only by allowing the proposed amendment.  
14. Dealing with  the judgments/decisions cited on behalf of  the Plaintiffs, Mr.
Joseph submitted that the ratio of the decision in S.P. Narayanaaswami Pillai (supra)
is that mere increase in the price of the property after the contract cannot constitute
unforeseen hardship (Paragraph 13 of the Judgment).   He submitted that the sum
and substance  of the finding in the  case of Ajendraprasadji N. Pandey vs. Swami
Keshavprakeshdasji N.  (supra)   is  found in  paragraph  14  of  the judgment which
holds: “The proviso is directory and not mandatory and calls for substantial and not
rigid compliance”.   Again in paragraph 54 of  the said decision, it is held  that the
amendment  seeks  to introduce    a  totally new  and inconsistent  case. Mr.  Joseph
10 1999 (5) SCC 77
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submits     that   therefore   obviously     where   the   bonafides   are   in   doubt   and   an
inconsistent case is set up, an amendment deserves to be disallowed.  
15.  As regards the judgment/decision in  Vidyabai vs. Padmalatgha (supra) cited
by the Plaintiffs, Mr. Joseph submitted that as can be seen from paragraph 6 of the
said   judgment,   a   specific   finding   was   rendered   that   the   Defendant   was   in   the
knowledge   of   the   facts   narrated     in   the   proposed   amendment.       Relying   on
paragraphs 18 and 19 of the said decision, it is submitted that the Hon’ble Supreme
Court has held therein that it is settled  by a catena of decisions  that the rule of
amendment is essentially  a  rule of justice, equity  and good conscience    and  the
power of amendment should be exercised in the larger interest of doing  full and
complete justice to the parties before the Court and that whilst considering whether
an application for amendment should or should not be allowed, the Court should
not go into the correctness or falsity of the case in the amendment. 
16. Mr. Joseph therefore submitted that the Chamber Summons be allowed with
costs. 
17. Mr. Doctor, the learned Senior Advocate appearing for the Plaintiffs has, in
rejoinder,   submitted   that   the   judgments   cited   by   the   Defendant   in   the   case   of
Chander Kanta Bansal (supra) not only supports the Plaintiffs’ contention that once a
trial commences  on known pleas, no application  for amendment should be allowed
but also further explains   the concept of “due diligence” with reference   to some
dictionary meanings and thus supports the Plaintiffs’ contention that the Defendant
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has not satisfied  the conditions precedent of Order VI Rule 17 of  the CPC.   Mr.
Doctor reiterated that the present amendment seeks to introduce facts which have
occurred in  2005, without  giving  any  details  as  to what  care  or  attention    the
Defendant has exercised in order  to bring  the said  facts on record at any earlier
point of time and thus the Defendant does not satisfy the requirements under the
definitions extracted in the judgment. There is no explanation as to why these  facts
are sought to be pleaded after completion of the evidence of Plaintiff No.1, thereby
clearly   showing   that   this   is   nothing   but   an   afterthought   on   the   part   of   the
Defendant. As regards the decision in the case of  K. Narendra vs. Riviera Apartments
(P) Ltd. (supra) relied on by the Defendant, Mr. Doctor submitted that the passage
reflects the position under English Law  which is different from  the position under
Indian law as is evident from Explanation  2 to Section 20 (2) (b) of the Specific
Relief Act.  Mr. Doctor submitted that the case of Baldev Singh and others  (supra)
relied upon by the Defendant   is of no assistance to the Defendant   since in that
particular matter  the Court came  to a  finding of  fact  that  the  trial had   not yet
commenced.   Similarly, the decision in  P. Kunjukrishna Pillai and another    (supra)
renders no assistance   to the Defendant since the said judgment concerns a Civil
Appeal from a Decree dated 10th April 1995  which is prior in point of time to the
amendment to Order VI Rule 17 of the CPC which took place in July 2002.   The
ratio of the judgment therefore would have no application in the facts of the present
case.  Mr. Doctor, therefore, submitted that the Defendant has not made out any case
for the Chamber Summons  being allowed and therefore the same deserves to be
dismissed. 
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18. I have considered the submissions advanced by the learned  Senior Advocates
appearing for the parties.  Admittedly, the Chamber Summons seeking amendment
to    the written statement dated 28th  September 2006 is moved by the Defendant
after the commencement of trial and that  there is no specific averment made in the
affidavit in  support of  the Chamber Summons  that in spite of due diligence  the
Defendant could not  have raised the matter before the commencement of trial.  It is
submitted by Mr. Doctor, the learned Senior Advocate appearing on behalf of the
Plaintiffs   that it is a well settled principle of law that when a statute requires a
particular condition to be fulfilled, the party relying on the same must aver that such
a condition has in fact been satisfied.  Unless this mandatory condition is satisfied
the   amendment   in   the   present   case   must   not     be   allowed.    In   support   of   his
submission, he has relied on the decision of a learned single Judge of this Court in
an   unreported   case   between  Air   Control   &   Chemical   Engineering   Co.   Ltd.   Vs.
M/s.Sheetal Ice Factory    (supra) decided on 10th  January, 1973 in A.O. No. 158 of
1972 wherein it is held as under:
“It was sought to be contended by Mrs. Manohar on behalf of the
Appellants that Section 34 does not require that there should be an
averment  to  that effect in  the application, or in  the affidavit in
support of it, but merely requires that the Court should be satisfied
in regard to the readiness and willingness of the applicant at the
material  times.  Even  on  principle,  there is  no  substance in  this
contention  of Mrs. Manohar for whenever  a  statutory  provision
lays  down  a  certain  condition for  the granting  of a  relief, it is
necessary for the plaintiff, or the applicant as the case may be, to
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make   averments   to   the   effect   that   those   conditions   have   been
satisfied, and unless such averments are contained in the plaint or
the application, there would be really no cause of action if it is a
plaint, or no case made out if it is an application, for one of the
bundle of essential facts would be  missing.”
Mr. Doctor  submitted that the  decision in Air Control and Chemical Engineering Co.
Ltd.  (supra),  is followed in a subsequent judgment of this Court in Shambhu Nath
Rameshchandra Sarvar (supra). 
19.   Section 34 of the Arbitration Act, 1940 reads as under:
“Power to stay legal proceedings where there is an arbitration
agreement.­    Where   any party to an arbitration agreement or
any person claiming under him commences any legal proceedings
against any other party to the agreement or any person claiming
under him in respect of any matter agreed to be referred, any party
to such legal proceedings may, at any time before filing a written
statement or taking any other steps in the proceedings, apply to the
judicial authority before which the proceedings are pending to stay
the proceedings; and if satisfied that there is no sufficient reason
why  the matter  should  not  be  referred   in accordance with  the
arbitration  agreement  and  that  the  applicant  was,  at  the  time
when  the proceedings were commenced, and still remains, ready
and willing to do all things necessary to the proper conduct of the
arbitration,   such   authority   may   make   an   order   staying   the
proceedings.”
Section   34   of  the   Arbitration   Act   therefore   entitles   any   party  to   an   arbitration
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agreement against whom legal proceedings are filed, to move  the Court before filing
a written statement or taking any other  step in the proceeding and point out that
there exists  an arbitration agreement between him and the party who has filed the
legal  proceedings in respect of the subject matter of the suit and therefore the legal
proceedings be stayed.  The Court, before which the legal proceedings are pending,
after being satisfied that there is no sufficient reason why the matter should not be
referred to arbitration in accordance with  the arbitration agreement and that the
applicant was at the time when the proceedings were commenced and still remains
ready and willing to do all things necessary to the proper conduct of the arbitration,
may pass an order staying the   proceedings. Therefore, it is necessary for a party
making an application   to state in his Application that the legal proceedings filed
against him pertain to a matter as regards which there already exists an agreement
between  the  parties  to  refer  the  same  to  arbitration.   The Applicant is  also not
entitled to approach the Court for stay of  the legal proceedings unless the Applicant
at the time when the legal proceedings were commenced and even on the date of
such application is ready and willing to do all things necessary to the proper conduct
of the arbitration. Therefore, the Hon’ble Supreme Court of India in Anderson Wright
Ltd. Vs. Moran & Co.  11   has enunciated  the conditions which are required  to be
fulfilled before a stay under Section 34 of the Arbitration Act can be granted. Their
Lordships at page  55 stated as under:
“Thus in order that a stay may be granted under this Section ( that
is, S. 34  of  the Arbitration Act, 1940), it is necessary  that  the
following conditions should be fulfilled:
11 1955 AIR SC 53
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(1)   The proceeding must have been commenced by a party to an
arbitration agreement against any other party to the agreement; 
(2)   The legal proceeding which is sought to be stayed must be in
respect of a matter agreed to be referred;
(3)         The     applicant   for   stay   must   be   a   party   to   the   legal
proceeding and he must have taken no step in the proceeding after
appearance. It is also necessary that he should satisfy the court not
only   that   he   is   but   also   was   at   the   commencement   of   the
proceedings ready and willing  to do everything necessary for the
proper conduct of the arbitration; and 
(4)     the court must be satisfied that there is no sufficient reason
why the matter should not be referred to arbitration in accordance
with the arbitration agreement.”
20. A Division Bench of this Court in Rasiklal Mangaldas Mehta vs. Bai Savita, A.O.
No. 30 of 1955 decided by Chagla CJ. And Dixit, J.  on July 27, 1955  (unreported)
therefore observed  thus:
“ If the defendant approaches the Court and wants the Court  to
hold its hands and not try  a suit and stay it, it is for the defendant
to aver all the allegations which are necessary in order to obtain a
stay of  the suit. The defendant has failed to make  the necessary
averments and on his application for stay he is bound to fail. But
assuming   the   Court   was   indulgent   and   had   permitted   the
defendant to make the necessary allegations even in his affidavit in
rejoinder, he has failed to do so.”
Therefore, as held by the Hon’ble Supreme Court in Anderson Wright Ltd.  (supra),
Section    34  of  the Arbitration Act,  1940 enjoins  an Applicant  to  fulfill    certain
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conditions and in the absence of the Applicant stating in his application that the said
conditions have been fulfilled, the application cannot be further entertained. These
are  the conditions which uniformly apply to all applications under Section 34 of the
Arbitration Act and are  required  to be   averred by  the Applicant.   The principle
applicable to Section 34 of the Arbitration Act cannot be applied to the proviso to
Order VI Rule 17 of the CPC where the reasons for an applicant  not being able to
raise the matter before the commencement of trial despite  due diligence would be
different in each case. It is for this reason  that the Hon’ble Supreme Court in the
case of Salem Advocates Bar Association vs. Union of India 12 observed that “….. Now
if application is filed after commencement of trial, it has to be shown that in spite of
due diligence, such amendment could not have been sought earlier”.   Therefore, what
is expected  from the Applicant is that he should show in his application that in spite
of due diligence such amendment could not have been sought earlier,  and it cannot
be said that it is mandatory  on the part of the Applicant to use the  words of the
Section that in spite of due diligence such amendment could not have been  sought
earlier.  Again, as held in Chander Kanta Bansal vs. Rajinder Singh Anand13  “The new
proviso   lays   down   that   no   application   for   amendment   shall   be   allowed   after   the
commencement of trial, 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.
But whether a party has acted with due diligence or not would depend upon the facts
and circumstances of each case”.  In my view, it is therefore clear that in each case
where a party has approached the Court to seek permission of the Court to amend
12 (2005 ) 6 SCC 344
13 (2008) 5 SCC 117
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the pleading after  the commencement of trial,  the facts and circumstances would
differ.  The party approaching the Court is therefore required to set out the facts and
circumstances of his case and it is the Court which has to consider such facts and
circumstances  pleaded in each case and come to the conclusion whether or not in
spite   of   due   diligence   the   party   could   have   raised   the   matter   before   the
commencement of trial.  I am therefore of the view that the averment  that in spite
of due diligence the party could not have raised the matter before commencement of
trial is not decisive in itself and the application cannot be simply dismissed on the
ground of absence of such pleading. It is for the Court to decide whether or not the
party could have raised the matter after exercise of due diligence, having regard to
the pleadings made in that behalf. 
21. The next question that arises for  determination is whether the Defendant has
made out a case that the Defendant could not have raised the matter before the
commencement of trial inspite of due diligence.  
22. In paragraph 20 of the written statement affirmed by the Defendant on 28th
September 2006, it is inter alia contended as follows:
“20. ……  It is disputed that the Plaintiffs are entitled for a decree
of specific performance as prayed for…..”
In paragraph 21, it is inter alia further contended as follows:
“21……   It is disputed that if this Hon’ble Court grants the relief
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prayed   for   no   harm   or   loss   or     injury   will   be   caused   to   the
Defendant   or   the   balance   of   convenience   is   in   favour   of   the
Plaintiffs.”
The paragraphs proposed to be added as Paragraphs 23A and 23 B in the written
statement and the issue proposed to be framed are as set out hereunder:
“23A.  It is also from our perspective, important to place on record
certain developments, I am aged 82 years and my wife is aged 76
years. We have three children, all daughters, none of whom have
any premises owned and/or in  their possession in  India.  It also
needs to be stated that all of us currently reside abroad. In the year
2004, none of us contemplated returning to India, though my wife
had even  then expressed  the desire  to return  to  India. However,
with the passing years and the fact of not being physically able to
do  the daily household care and maintenance ourselves and  the
non availability of domestic help in Canada we (my wife and I)
have definitely decided to at least spend the better part of winter in
India,   particularly   on   account   of   tough   conditions   in   Canada.
Further   on   6th  July,   2005   I   suffered   a   heart   attack   and   my
cardiologist has recommended/instructed to avoid the harsh cold
weather of Canada and opt for a warmer and gentler climate.  It is
therefore  our  wish  and intention  now  to  spend  the months  of
November to April in India at our home which is the subject matter
of the present Suit. 
23B.    In  this context  therefore  though in  the circumstances and
facts   prevailing   in   2004­2005   we   had   nursed   the   prospects   of
selling  the  suit  premises,  we  did  not  even  enter into  any  such
Agreement.  In any event at this point of time, we have absolutely
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no  such intentions, in fact  require  the  suit  property,  which,  as
aforementioned is our only owned and possessed premises in India.
We have been residing in the suit property all these years on our
visits to India, and now need the same as our permanent long term
residence in India, where our children and grandchildren can also
visit and stay. It is therefore respectfully  submitted that we will be
extremely prejudiced and inconvenienced if we are forced to part
with the ownership and possession of suit property.”
From paragraphs  23A of the proposed amendment it is clear that in the year 2004,
the Defendant and her husband  did not contemplate returning to India.  However,
with the passage of time, they have definitely decided to at least spend the better
part of winter in India.  In July 2005, the husband of the Defendant suffered a heart
attack and his Cardiologist had recommended/instructed him to avoid the harsh cold
weather of Canada and opt for a warmer and gentler climate.  Due to these health
reasons and non­availability of domestic help, the Defendant and her husband have
been visiting India regularly and it is therefore their wish and intention “now”   to
spend the months of November to April in India in the suit flat.  From paragraph 23B
of the proposed amendment it is clear that the case sought to be made out is that the
Defendant and her husband are residing in  the suit property all  these years only
during their visit to India and    “now”    the Defendant and her husband need the
same  as  their permanent long  term  residence in  India, where  their children  and
grand­children can also visit and stay with them, and therefore the Defendant and
her husband   will be gravely prejudiced and inconvenienced if they are forced to
part with the ownership and possession of the suit property.  The Defendant has in
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her affidavit in support of the Chamber Summons stated that the written statement
was filed by 28th September 2006. Thereafter, she and her husband have continued
to reside in Canada though regular visits are also made to India.  Before the suit was
listed   for   filing   of   evidence   and   cross­examination,   her   husband   held   elaborate
discussions   with   her   Advocates   and  in   the   course   of   preparing   the   affidavit   of
evidence the facts incorporated in paragraphs 8 and 9 of the affidavit of evidence
dated 26th April, 2012 (now annexed as paragraphs 23A and 23B at Schedule­A to
the Chamber Summons) were  for  the  first  time disclosed  to  the Advocates.   The
Defendant’s Advocates then advised that specific performance being a discretionary
relief, the said facts would have to be placed before this Court and accordingly the
affidavit of evidence dated 26th  April  2012 was filed bringing the aforesaid facts.
However  since the Advocates for the Plaintiffs objected to the said two paragraphs
being part of affidavit of evidence,  the Advocate  for  the Defendant proceeded  to
move   the   Court   seeking   amendment   of   the   written   statement   and   to   raise   an
additional issue  and  accordingly  the  present  Chamber  Summons  along  with  the
affidavit in support is filed. 
23. In paragraphs  9  to 12  and 15 of  the  affidavit in  support of  the Chamber
Summons, the  Defendant has stated as follows:
“9.   It is submitted  that  the very nature of the Amendment
would not cause any prejudice to the Plaintiff as the same does
not affect the facts or the nature of the Plaintiffs version of the
case. The facts narrated in the said paragraphs are effectively
subsequent events/developments which were brought on record
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at the earliest available opportunity. 
10. I say and submit that the proposed amendment and
the proposed additional issue will enable this Hon'ble Court to
effectively   try     the   whole   case   on   the   merits   and   render
complete   justice,   and   it   is   submitted   that   an   opportunity
should be afforded by allowing the amendment and adding the
issue.
11. I   say   and   submit   that   the   very   nature   of   the
proposed amendment and  the proposed additional issue will
indicate   the   importance   and   the   need   for   the   same.     The
application have been necessitated by subsequent events and
personal decisions.
12. I further say and submit that considering the facts
and   circumstances   the   Defendant   could   also   obtain   proper
legal advise only at this later stage necessitating the present
application.
15.       It  is  further   respectfully   submitted  in   the   facts   and
circumstances there is no wilful latches and negligence on the
part   of   the   Defendant   and   raising   the   amendment   and
additional   issue   which   have   all   been   necessitated   due   to
subsequent   development   and   change   in   circumstances.
Further,     in   the   present   facts   emanating   in   the   case,   the
proposed amendment and  the  proposed additional issue are
necessary to enable a proper and legal exercise of discretion by
this Hon'ble Court balancing the equities on both sides in the
context of present Suit being a Suit for Specific Performance.”
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24. The Hon’ble  Supreme Court in its  decision   in  Chander Kanta  Bansal  vs.
Rajinder Singh Anand  (supra) has in paragraphs 11 to 16 analysed the scope and
effect of Order VI Rule 17 and it is inter alia held as follows:
 “11.   The proviso limits the power to allow amendment after
the commencement of trial but grants discretion to the court to
allow amendment if it feels that the party could not have raised
the matter  before  the  commencement  of  trial in  spite  of  due
diligence. It is true that the power to allow amendment should
be  liberally  exercised.  The  liberal  principles  which   guide  the
exercise   of   discretion   in   allowing   the   amendment   are   that
multiplicity of proceedings should be avoided, that amendments
which do not totally alter the character of an action should be
granted, while care  should be  taken  to see  that injustice and
prejudice of an irremediable character are not inflicted upon the
opposite party under pretence of amendment….
12…..   The   new   proviso   lays   down   that   no   application   for
amendment shall be allowed after the commencement of trial,
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. But whether a party has acted with due
diligence or not would depend upon the facts and circumstances
of  each  case.  This  would,  to  some  extent, limit  the  scope  of
amendment to pleadings, but would still vest enough powers in
courts  to  deal  with   the  unforeseen  situations  whenever   they
arise.
13…..Once, the trial commences on the known pleas, it will be
very difficult for any side to reconcile. In spite of the same, an
exception is made in   the  newly  inserted  proviso   where  it  is
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shown that in spite of due diligence, he could not raise a plea, it
is for  the  court  to  consider  the  same.  Therefore, it is  not  a
complete bar nor shuts out entertaining of any later application.
As stated earlier, the reason for adding proviso is to curtail delay
and expedite hearing of cases.
15.    As discussed above, though first part of Rule 17 makes it
clear that amendment of pleadings is permitted at any stage of
the proceeding, the proviso imposes certain restrictions. It makes
it clear that after the commencement of trial, no application for
amendment shall be allowed. However, if it is established that in
spite  of   "due   diligence"   the   party  could   not  have   raised   the
matter   before   the   commencement   of   trial   depending   on   the
circumstances, the court is free to order such application. 
16.       The words  "due diligence" has not been defined in  the
Code. According to Oxford Dictionary (Edition 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   Black's   Law
Dictionary (Eighth Edition), "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 Drain­Dyspnea (Permanent Edition 13A) "due diligence", in
law,   means   doing   everything   reasonable,   not   everything
possible.  "Due diligence" means reasonable diligence; it means
such diligence as a prudent man would exercise in the conduct
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of his own affairs” 
As defined in words and phrases by  Drain­Dyspnea (Permanent Edition 13A) “due
diligence” in law means doing everything  reasonable, not everything possible. Due
diligence means reasonable   diligence, it means such diligence as a prudent man
would exercise in the conduct of his own affairs.    The Defendant has in her written
statement denied the allegation made by the Plaintiffs in their plaint  that the reliefs
sought   by   the   Plaintiffs,   if   granted,   shall   cause   no   harm   loss   or   injury   to   the
Defendant. As  stated in  paragraph  4  of  the  affidavit in  support  of  the Chamber
Summons,  after  the written  statement was  filed  by  the Defendant,  she  and  her
husband continued to reside in Canada though regular visits were made to India.
However, her husband met her Advocate before the suit was listed before the Court
for filing of her evidence and cross­examination and held elaborate discussions with
her Advocates.  In the course of preparing the affidavit of evidence,  for the first time
she disclosed  to the Advocates that in the year 2004, they had not contemplated
returning to India though the Defendant had expressed her desire to return to India.
However, with passage of time and  physically being incapable of  carrying on their
daily   household   chores   particularly   due   to   non­availability   of   domestic   help   in
Canada, the  Defendant and her husband have definitely decided to at least spend
the better part of winter in India particularly on account of the tough weather and
other conditions in Canada.    In fact,  the Cardiologist of the Defendant when she
suffered a heart attack on 6th July 2005 had recommended/instructed her to avoid
the harsh cold weather of Canada and opt for a warmer and gentler climate.   It is

therefore  “now”  their intention to spend the months of November to April in India
at their home which is the subject matter of the present suit.  The Advocates were
also informed that the Defendant and her husband are residing in the suit property
during their visits to India and “now”  need the same as their permanent long term
residence in India. It is therefore clear that with the passing years, the Defendant
and her husband did feel that they will have to spend  substantial time during winter
in India in the suit premises and that now they have taken  a decision to reside in
the suit flat during the months of November to April.  The Advocates after learning
these facts from the husband of the   Defendant advised that specific performance
being a discretionary relief, the said  facts should be placed before the Court and
accordingly  the  affidavit of evidence dated  26th  April, 2012 was  filed  before  the
Court.  Since  the  Plaintiffs  objected  to  the incorporation  of  the  said  facts in  the
affidavit of evidence, the Defendant took out the present Chamber Summons seeking
amendment of the written statement for incorporating the above two paragraphs in
the written statement.   The suit, after the written statement dated 28th September
2006 was taken on record by an order dated 31st March 2008, came up for hearing
before this Court on 13th  February 2012 when the issues were framed.  It is a known
fact that the suits are taken up for hearing and final disposal in Courts  several years
after the date of its filing.  Once an interim application is disposed of and/or the
written statement is filed, the clients do not meet the Advocates until summoned by
their Advocates.  The Defendant  has  also met  the Advocates  and  had  a  detailed
meeting   with   them   only   at   the   time   of   preparation   of   her   evidence   when   she
informed  the Advocates about  the problems qua  the Defendant and her husband

residing  permanently in Canada  and only visiting  India intermittently  and  about
their   intention   now   to   permanently   reside   in   India   in   the   suit   premises   from
November to April.    In my view, it would be too much to expect of a prudent man
to be mindful  of the consequences of having decided to reside in the suit property
more  often  and  for longer  durations   from   the  stand  point  of  pleadings  on  the
question of comparative hardship i.e.  a specific performance suit and accordingly
inform   his   advocate   immediately   upon   having   so   decided.     It   is   very   much
reasonable for a prudent man to become aware of the significance of such a decision
from the point of view of the law of pleadings only after discussing the same in the
context of his oral evidence with his  advocate.    In  fact, even  the lawyers of  the
Defendant initially felt that these facts can be incorporated in the evidence and there
was no need  to file an additional written statement or amend the earlier written
statement to incorporate  these facts.   Under these circumstances, the Defendant is
not expected to understand the relevance of her decision to stay in the suit flat for a
period of six months in a year instead of certain visits during a year and therefore
rush to her Advocates to give the said information. The Defendant has, as is prudent,
informed her Advocate  during detailed discussions held with her advocates at the
time   of   preparation   of   her   evidence   resulting   in   the   Advocates   explaining   the
relevance  of  such  change in  circumstances/decision  and  taking immediate  steps
thereon.   Therefore,  I am of  the view  that  the Defendant has  shown  reasonable
diligence which a prudent person would exercise in the conduct of his own affairs
and I am satisfied that the Defendant could not have raised the issue of hardship
before the commencement of trial inspite of due diligence.  

 25. I   am   also   of   the   view   that   allowing   the   amendment   will   not   alter   the
character of the suit in any  manner nor will any injustice and prejudice be caused to
the Plaintiffs.   It is held by the Hon’ble Supreme Court in  Chandeer Kanta Bansal
(supra) that under such circumstances the power to allow the amendment should be
liberally exercised. Again, as held in the said decision by the Hon’ble Supreme Court,
that  the proviso  to Order VI Rule 17 is not a complete bar nor does it shut out
entertaining   of   any   latter   amendment   applications.   The   reason   for   adding   the
proviso, as held by the Apex Court, is only to curtail delay and expedite hearing of
cases.  In the instant case, the Defendant has always co­operated with the Plaintiffs
and has  at no time made any attempt to delay the hearing of the suit. 
26. As held by the Hon’ble Supreme Court in its decision in the case of State of
Madhya Pradesh vs. Union of India and another14  though the proviso, to some extent,
curtails absolute discretion to allow amendment at any stage, the purpose and object
of Order VI Rule 17  of  the CPC   is  to  allow either  party  to  alter  or  amend  his
pleadings in such a manner and on such terms as may be just.   Amendment cannot
be claimed as a matter of right, but at the same time the  Courts, while deciding
such  prayers,    should  not  adopt  a  hyper  technical  approach.    Liberal  approach
should   be   the   general   rule   particularly   in   cases   where   the   other   side   can   be
compensated with costs.  In fact in the case  of Ajendraprasadji N. Pandey vs. Swami
Keshavprakeshdasji N. (supra) , the Hon’ble Supreme Court has in paragraph 14 held
14 AIR 2012 SC 2518

that “the proviso is directory and not mandatory and calls for substantial and not rigid
compliance.” 
27. The relief of specific performance is a discretionary relief and Section 20 (2)
(b) of the Specific Relief Act, 1963 provides that the Court may properly exercise
discretion not to decree specific performance  where the performance of the contract
would involve some hardship  on the defendant which  he did not foresee, whereas
its non­performance would involve no such hardship on the Plaintiff.  By the present
amendment, the Defendant seeks to point out the hardship that would be caused to
her   in   the   event     the   reliefs   claimed   by   the   Plaintiffs   are   granted.   Such   an
amendment is therefore necessary to decide the real  disputes between the parties.
The  question  therefore  whether   the  performance   of   the  contract   would  involve
hardship on the defendant within the meaning of clause (b) as set out in explanation
(2) of Section 20 of the Specific Relief Act is an issue which will be subsequently
decided on merits.  The Hon’ble Supreme Court in the case of Rajesh Kumar Agarwal
(supra)  has inter  alia  held in  paragraph  19  that while  considering   whether  an
application for amendment should or should not be allowed, the Court should not go
into the correctness or falsity of the case in the amendment.  Likewise, it should not
record a finding on the merits of  the amendment. The merits of  the amendment
sought to be incorporated by way of an amendment are not to be adjudged at the
stage of allowing the prayer for amendment.  
28. In the circumstances I am of the view that if the amendments sought by the

Defendant are  allowed, no prejudice will be caused to the Plaintiffs, whereas if the
said amendments are not allowed, grave and irreparable harm, loss, damage, injury
and prejudice will be caused to the Defendant who, as already stated hereinabove,
has acted with such diligence as a prudent man would exercise in the conduct of his
own affairs.  Chamber Summons is therefore allowed in terms of prayer clauses (a)
and  (b).    However, in  order  to  ensure  that    the  Plaintiffs  are  not in  any  way
prejudiced, the Plaintiffs are allowed to adduce additional evidence on the amended
written statement before the Defendant leads her evidence.  Defendant shall also pay
costs quantified at Rs. 1,00,000/­ to the Plaintiffs. Amendment to be carried out on
or before 31st March,2013. The Chamber Summons is accordingly disposed of.
(S.J. KATHAWALLA, J.)

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