TMI Blog2008 (3) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... amod Gupta (dead) by LRs and Others, [ 2005 (9) TMI 618 - SUPREME COURT] , this Court cautioned that delay and laches on the part of the parties to the proceedings would also be a relevant factor for allowing or disallowing an application for amendment of the pleadings. As observed, the suit filed in the year 1986 is for a right of passage between two portions of the same property dragged for a period of 21 years. In spite of long delay, if acceptable material/materials placed before the court show that the delay was beyond their control or diligence, it would be possible for the court to consider the same by compensating the other side by awarding cost. As pointed out earlier, when she gave evidence as D.W.1, there was no whisper about the written document/partition between the parties. On the other hand, she asserted that partition was oral. Now by filing the said application, she wants to retract what she pleaded in the written statement, undoubtedly it would deprive the claim of the plaintiff. We are also satisfied that she failed to substantiate inordinate delay in filing the application that too after closing of evidence and arguments. All these aspects have been consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 18.11.2004. Against that order, the respondent herein filed a C.M.(Main) No. 136 of 2005 before the High Court of Delhi. By order dated 22.11.2006, the High Court allowed the petition and set aside the order passed by the trial Court on 18.11.2004 in the amendment application. Aggrieved by the said order, the appellant preferred the present appeal by way of special leave before this Court. 4) Heard Mr. Ranjit Kumar, learned senior counsel appearing for the appellant and Mr. Altaf Ahmed, learned senior counsel appearing for the respondent. 5) The respondent herein (plaintiff) filed a suit No. 261 of 1986 on the file of Senior Sub-Judge, Delhi praying a decree for mandatory injunction against the defendant (appellantherein) to remove all obstructions at point X and lock at point Y in the site plan of the property No. 13/20, Punjabi Bagh Extn. New Delhi and also not to put the lock at main gate of the property. In the same p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 stated in the written statement as well as in her evidence by the impugned order set aside the order of the trial Court and rejected the application filed by the defendant seeking to amend the written statement. Aggrieved by the said order of the High Court, the defendant has filed the above appeal by way of special leave. 8) In order to find out whether the application of the defendant under Order VI Rule 17 for amendment of written statement is bonafide and sustainable at this stage or not, it is useful to refer to the relevant provisions of CPC. Order 6 Rule 17 reads thus: 17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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 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. 11) Keeping the above broad principles in mind, let us ascertain whether the defendant has justiciable cause to file an application praying for amendment of a written statement for bringing an agreement dated 10.09.1982. We have already referred to the fact that the plaintiff had approached the court seeking a decree for mandatory injunction as early as on 1986. We also refer to the fact that within a short duration i.e. in 1986 itself, the defendant has filed a written statement. Absolutely, there is no whisper about the prior partition agreement dated 10.09.1982. No dou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpected 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. It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial. As mentioned earlier, in the case on hand, the application itself came to be filed only after 18 years and till the death of her first son Sunit Gupta, Chartered Accountant, had not taken any step about the so-called agreement. Even after his death in the year 1998, the petition was filed only in 2004. The explanation offered by the defendant cannot be accepted since she did not mention anything when she was examined as witness. 12) As rightly referred to by the High Court in Union of India vs. Pramod Gupta (dead) by LRs and Others, (2005) 12 SCC 1, this Court cautioned that delay and laches on the part of the parties to the proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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