In the instant case, the statement that in spite of being duly instructed, the learned Advocate on record did not incorporate the pleading as sought to be raised is the only justification for not raising the plea earlier. However, it cannot be taken to answer the test of "due diligence" as required by the proviso under Rule 17, Order 6, Civil Procedure Code. The proviso contemplates parties to exercise due care and caution in raising the matter before the Court and once trial commenced, no new or additional plea can be permitted to be raised unless the party shows that with all diligence at its command, it could not raise it before commencement of the trial. The due diligence prescribed by the proviso is of the parties and of nobody else including the Advocate on record. If Counsel of the party refuses to take up certain pleas wished by his client to be taken up, the least and perhaps the only thing the client can do to get his wish fulfilled is to go to another counsel who will pay heed to him or else accept the judgment of his counsel for good. If he adopts the latter course, he cannot say later on, almost as an afterthought and by way of repentance, that although he toiled hard, he could not raise the plea earlier due to the stand taken by his earlier counsel. If a party chooses to accept the advice of Advocate "completely believing in him and his extra ordinary experience" as mentioned in the petitioner's amendment application in the present suit, instead of going to another Advocate well in time, he cannot be heard to say and imply that he was diligent when he "duly instructed" the Advocate but was helpless when his Advocate refused to follow the particular instructions. Due diligence contemplated by the said proviso is something akin to situation of helplessness or of things, beyond one's own control. Such is not the case here. A party always has the choice of Advocates.
13. A party can of course say, he being not a legal expert, would not know immediately that decision of his Advocate is not sound and so he would not be in a position to promptly exercise his choice of Advocates and would be able to do so only after passage of some time, when he would learn or be told about the incorrectness of approach of his Advocate. Even this justification, in my opinion, cannot answer the test of due diligence. The reason being that a representative or Advocate and the party being represented in a case are not two separate identities in that case, so far as conduct of the case is concerned. Whatever an Advocate does on behalf of the client is considered to be done by the party himself. The acts of the Advocate before the Court are binding upon the party he represents and what he submits before the Court on facts is only what the party says and what he says in law is with the approval, express or assumed, of the party. In other words, all actions taken before the Court by an Advocate, are the actions of the party. So, there is no splitting of concept of due diligence, one of the party and the other of the Advocate, so as to enable the party to be excused for negligence of the Advocate just by showing his own diligence. If such a ground is to be taken as a good ground, it may provide an effective tool to the lazy and indolent parties to conveniently get over the rigour of due diligence test prescribed under the proviso to Rule 17, Order 6, Civil Procedure Code. All that he would have to do is change the Advocate blaming it on the previous Advocate.
IN THE HIGH COURT OF BOMBAY AT GOA.
WRIT PETITION NO. 625 OF 2013.
Mr. Conception Fernandes,V/s Mrs. Tasneem Shaikh,
Coram:-S. B. SHUKRE, J.
Pronounced on:-11th April, 2014.
Citation: 2014(5)ALLMR751, 2014(6)BomCR179, 2014(5)MhLj494
This Writ Petition is directed against the order dated
2.9.2013 passed on an application at Exh.84 filed under Order 6,
Rule 17 CPC in Regular Civil Suit No. 20/2010/A by the Civil
Judge, Senior Division, Vasco-da-Gama.
2.
The petitioners, who are original defendants filed an
application under Order 6, Rule 17 CPC for amendment of their
written statement. By the proposed amendment, the petitioners
submit
certain clarifications were sought to be introduced in
the written statement so as to elaborate the stand and the
defence taken by the petitioners.
these
pleadings
were
It was their contention that
necessary
for
deciding
the
real
controversy involved in the case and could not have been
incorporated by them in the written statement earlier inspite of
due diligence on their part. They submitted that their earlier
counsel was instructed on these facts by them but he was of the
opinion that it was not necessary to include them in the written
statement as basic facts were already stated therein. It is also
submitted by them that they believed in the ability and extra
ordinary knowledge of the advocate on record and therefore,
did not press for inclusion of these pleadings in the written
statement.
3.
Amendment application was strongly opposed by the
respondents/original plaintiffs. It was their contention that the
trial of the suit having been commenced and no ground having
been shown by the petitioners in terms of the proviso to Rule
17, Order 6 CPC, the application could not be allowed.
4.
After hearing both sides, the learned Civil Judge,
Senior Division found that the petitioners failed to establish that
amendments were of such a nature as, inspite of due diligence,
could not have been made earlier and therefore, rejected the
application by his order which is impugned herein.
5.
Heard learned counsel for the petitioners and
learned counsel for the respondents.
The only point that arises
for my determination in this Writ Petition is:-
Whether the impugned order dated 2.9.2013 suffers
from vice of arbitrariness and unreasonableness?
6.
Learned counsel for the petitioners has submitted
that the principles that apply to amendment of written
statement are slightly different from those which apply to the
amendment of plaint as in case of amendment of written
statement the question of prejudice is far less important than in
the latter case. Therefore, what is required to be seen by the
Court is whether or not the plea sought to be raised is necessary
for deciding the real controversy involved in the case. He also
submits that while applying the principle of “due diligence”
Court must be conscious of the fact that it is for the Court to
decide whether or not parties could
have raised the matter
earlier after exercise of due diligence and that the application
cannot be dismissed simply on the ground that such pleading is
not made in the application. He also submits that pleadings can
be amended at any stage of the suit, even at the appellate stage
and, if this is so, the application filed in the instant case by the
petitioners ought to have been granted by learned Civil Judge,
Senior Division.
7.
In support of his submissions, the learned counsel
for the petitioners has placed reliance upon the following cases:-
(i)
Piedade Fernandes Vs. Charlene Leitao, 2012(1) Mh.
L. J.
(ii)
Rohit A. Kapadia and another Vs. Perviz J. Modi,
2013(4) Mh. L. J. 940.
(iii)
Shyamabai Surajkaran Joshi Vs. Madan Mohan
Mandir Sanstha, 2014(10 ALL MR 810.
(iv)
Kamlesh Jagannath Suryavanshi Vs. Kalyan Shirshir
Kumar Dutta, 2013(6) ALL MR 537.
8.
On
the
other
hand,
learned
counsel
for
the
respondents has submitted that since the amendment of
pleadings was sought to be made after commencement of the
trial in the instant case, the application was required to fulfill
the criteria laid down in the proviso to Rule 17, Order 6 of CPC.
According
to
this
proviso,
learned
counsel
submits,
no
application for amendment can be allowed after the trial has
commenced unless the Court is satisfied that inspite of due
diligence, the parties could not have raised the matter before
the commencement of the trial. He submits that ground that
inspite of the petitioners adequately briefing the earlier counsel,
the earlier counsel did not incorporate these pleadings in the
written statement cannot be seen as satisfying the test of due
diligence. If such a ground is to be accepted, it would be very
easy for the parties to circumvent the said provision, so submits
learned counsel for the respondents. Thus, he urges that there
is no merit in the petition and it deserves to be dismissed.
9.
In support of his submissions learned counsel for the
respondents has placed reliance upon the following cases:-
(i)
Ajendraprasadji
N.
Pandey
Vs.
Swami
Keshavprakeshdasji N., (2006) 12 SCC 1.
(ii)
Kishor R. Pande Vs. Narendra D. Shah, 2012(2)
Bom. C.R. 629.
10.
A careful perusal of the above referred judgments
discloses that
amendment of pleadings can be allowed at any
stage of the proceedings even at the appellate stage, if the same
is necessary to decide the real controversy involved in the case
and that while exercising power to allow amendment, liberal
approach should be adopted, as the provisions of Order 6, Rule
17 CPC are intended to secure proper administration of justice.
It is further seen that after introduction of the new Rule 17,
Order 6, by the amendments to the CPC made by Amendment
Act, 2002 which came into force w.e.f. 1.7.2002, some change
has occurred in the sense that width of power of Court to allow
the amendment of pleadings at any stage has been reduced. The
new Rule does not place any restrictions on the power of the
Court to allow amendment before beginning of trial and the only
rider is that it should be necessary to decide the real
controversy. But, the Rule narrows the range of this power of
the Court, if it is to be exercised after commencement of trial. It
lays down that the power can be exercised after beginning of
trial only when the Court is satisfied that the plea could not
have been raised earlier, inspite of due diligence. It is also seen
from the these cases that averment of plea of due diligence is
not so much important as the satisfaction of the Court about
the same is.
11.
Learned counsel for the petitioner has submitted
that learned Civil Judge has ignored the above referred
principles and dismissed the application simply on the ground
that there was no averment in the application that inspite of due
diligence, the petitioners could not have raised the matter
earlier. He has invited my attention to the observations made in
this regard in paragraph 20 of the impugned order.
12.
Learned counsel for the respondents, on the other
hand, submits that even though said observations are found to
be in paragraph 20, later on the learned Civil Judge has made
some amends and in paragraph 31 has held that ground that
advocate on record, inspite of being duly instructed did not
incorporate certain facts, cannot be taken to be the sufficient
ground for allowing of the amendment application after
commencement of the trial
and this observation satisfies the
criteria laid down in the case of Rohit A. Kapadia(supra) that
presence or absence of pleadings of due diligence does not
matter and it is the application of mind of the Court to the
facts and circumstances of the case and a decision taken in the
light of these facts and circumstances are what matter.
13.
In the instant case, the statement
that inspite of
being duly instructed, the learned Advocate on record did not
incorporate the pleading as
sought to be raised is the only
justification for not raising the plea earlier. However, it cannot
be taken to answer the test of “due diligence” as required by
the proviso under Rule
17, Order 6 CPC. The proviso
contemplates parties to exercise due care and caution in raising
the matter before the Court and once trial commenced, no new
or additional plea can be permitted to be raised unless the party
shows that with all diligence at its command, it could not raise
it before commencement of the trial.
The due diligence
prescribed by the proviso is of the parties and of nobody else
including the Advocate on record. If Counsel of the party refuses
to take up certain pleas wished by his client to be taken up, the
least and perhaps the only thing the client can do to get his
wish fulfilled is to go to another counsel who will pay heed to
him or else accept the judgment of his counsel for good. If he
adopts the latter course, he cannot say later on, almost as an
after thought and by way repentance, that although he toiled
hard, he could not raise the plea earlier due to the stand taken
by his earlier counsel. If a party chooses to accept the advice of
Advocate “completely believing in him and his extra ordinary
experience”
as mentioned
in the petitioner's amendment
application in the present suit, instead of going to another
Advocate well in time, he cannot be heard to say and imply that
he was diligent when he “duly instructed”
the Advocate
but
was helpless when his Advocate refused to follow the particular
instructions. Due diligence contemplated by the said proviso is
something akin to situation of helplessness or of things, beyond
one's own control. Such is not the case here.
A party always
has the choice of Advocates.
14.
expert,
A party can of course
say, he being not a legal
would not know immediately that decision of his
Advocate is not sound and so he would not be in a position to
promptly exercise his choice of Advocates and would be able to
do so only after passage of sometime, when he would learn or
be told about the incorrectness of approach of his Advocate.
Even this justification, in my opinion, cannot answer the test of
due diligence.
The reason being that a representative or
Advocate and the party being represented in a case are not two
separate identities in that case, so far as conduct of the case is
-- 10 --
concerned. Whatever an Advocate does on behalf of the client is
considered to be done by the party himself.
The acts of the
Advocate before the Court are binding upon the party he
represents and what he submits before the Court on facts is only
what the party says and what he says in law is with the
approval, express or assumed, of the party. In other words, all
actions taken before the Court by an Advocate, are the actions
of the party. So, there is no splitting of concept of due diligence,
one of the party and the other of the Advocate, so as to enable
the party to be excused for negligence of the Advocate just by
showing his own diligence. If such a ground is to be taken as a
good ground, it may provide an effective tool to the lazy and
indolent parties to conveniently get over the rigour of due
diligence test prescribed under the proviso to Rule 17 Order 6
CPC.
All that he would have to do is change the Advocate
blaming it on the previous Advocate.
15.
Viewed in this way, I am of the opinion that the
learned Civil Judge was right in holding that the amendment
application could not have been allowed only on the ground
that there was failure of the Advocate to raise the matter inspite
of he been duly instructed by the petitioner.
-- 11 --
16.
Learned Civil Judge in para 20 of the impugned
order has observed that the petitioners have not averred any
facts to show that they
had exercised due diligence before
signing and verifying the written statement prepared by their
Advocate on record.
But,
as rightly
submitted by learned
counsel for the respondents, learned Civil Judge has made some
amends in his approach to the amendment application and later
on, as seen from his observation in paragraph 31, the learned
Civil Judge considered the very ground of failure of the
Advocate on record to incorporate the pleadings inspite of he
being duly instructed and found that it was not a sufficient
ground to enable the Court to exercise its discretionary power
under rule 17 Order 6 of the CPC.
This later observation
indicates application of mind on the part of learned Civil Judge,
to the facts and circumstances of the case, thereby satisfying
the test laid down in the case of Rohit Kapadia(supra). The
criterion is not whether any averment regarding due diligence
is made, and the real test is whether the Court has, by taking
into account the facts and circumstances of the case, decided as
to whether or not the party could have raised the matter earlier
after exercise of due diligence.
17.
Thus,
I
see
neither
any
perversity
nor
any
-- 12 --
arbitrariness nor any unreasonableness in the order passed by
the learned Civil Judge, which is impugned herein. The point is
answered as in the negative.
18.
In the result, Writ Petition stands dismissed. Parties
to bear their own costs.
19.
Rule is discharged.
S. B. SHUKRE, J.
vn*
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