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TMI Blog2008 (3) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... construction in the year 1983 and completed the same in the year 1984. The respondent also started raising the construction on the back portion and completed the same in the year 1985. Both the parties were in use and occupation of their respective portions of the property after the respective construction. In the year 1986, the respondent herein filed a suit for mandatory injunction being Suit No. 261 of 1986 alleging that the drive way, which is 10' wide from gate facing 30' road upto the road facing 15' vide service lane at the back, has been encroached upon by the appellant and the appellant is not permitting him to use the drive way. Written statement was filed and the witnesses were examined. On 12.5.2004, the appellant herein filed an application under Order VI Rule 17 read with Section 151 CPC for amendment of written statement and sought the permission of the Court to file a written agreement executed between the parties on 10.9.1982. The respondent herein filed a reply to the application denying the execution of the agreement and claimed that the same is forged and fabricated document. The trial Court, after hearing the arguments, allowed the amendment application on 18. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nth of May, 1986 and after more than 18 years, the present application has been moved with a view to frustrate the claim of the plaintiff. The trial has completed and after the final arguments when the defendant came to know that she is going to lose her case she is changing her stance by filing the present application for amendment in the written statement. It was further stated that the alleged agreement/partition dated 10.09.1982, which itself is not admissible in the eye of law wince it is a forged document and on the basis of the said document, the proposed amendment cannot be allowed. 7) The Civil Judge, based on the claim of both the parties, particularly accepting the explanation offered by the defendant allowed the said application and permitted the defendant to incorporate the proposed amendments in the written statement on payment of cost of Rs. 3,000/-. Questioning the said order, the plaintiff has filed a C.M. (Main) No. 136 of 2005 before the High Court of Delhi. On going through the entire materials and details, namely, filing of the suit in the year 1986, the application for amendment of written statement filed only in 1994 and of the fact that nothing has been sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersy leading to protest all over the country. Thereafter, the rule was restored in its original form by amending Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to some extent. 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. 10) The entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the others case. It also helps in checking the delays in filing the applications. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 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. " ..... X X X X Extracts X X X X X X X X Extracts X X X X
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