S.J. Kathawalla, J.@mdashThe Plaintiffs have filed the above suit against the Defendant for a declaration that the concluded contract in terms of the unsigned MOU being Exhibit-O 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. 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.
2. 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 cross-examined 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 cross-examination 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.
3. 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.
4. 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 Factory Decided on 10th January, 1973 in AO No. 158 of 1972 which is followed by another learned Single Judge of this Court in Shambhu Nath Rameshchandra Sarvar vs. Surendra Manilal Jhaveri LXXX BLR 34.
5. 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
6. 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
7. 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 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.
8. 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
9. 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 u/s 20 of the Specific Relief Act, 1963 can also be effectively and properly exercised.
10. Mr. Joseph next relied on the decision of the Hon''ble Supreme Court in
11. Mr. Joseph also relied on the decision of the Hon''ble Supreme Court in
12. 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
13. Dealing with the judgments/decisions cited on behalf of the Plaintiffs, Mr. Joseph submitted that the ratio of the decision in S.P. Narayanaswami 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 submits that therefore obviously where the bonafides are in doubt and an inconsistent case is set up, an amendment deserves to be disallowed.
14. 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.
15. Mr. Joseph therefore submitted that the Chamber Summons be allowed with costs.
16. 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.
17. 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).
18. 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
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:
(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.
19. 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 u/s 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
20. 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.
21. 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 2004-2005 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 non-availability 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 grand-children 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 cross-examination, 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 Schedule-A 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.
22. 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.
23. 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 Drain-Dyspnea (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.
As defined in words and phrases by Drain-Dyspnea (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 cross-examination 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 non-availability 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.
24. 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 Chander 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 co-operated with the Plaintiffs and has at no time made any attempt to delay the hearing of the suit.
25. As held by the Hon''ble Supreme Court in its decision in the case of
26. 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 non-performance 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. 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.
