KAIRA BAI Vs. NISHI SIDDIQUI & ORS

JUDGEMENT

(1.) The singular question involved in this petition filed under Article 227 of the Constitution is whether the court below was justified in allowing the amendment application filed by the defendant / respondent No.4 after commencement of the trial The ancillary question is whether in the application dated 26.08.2014 preferred under Order 6 Rule 17 C.P.C., the 'due diligence' was shown

(2.) The petitioner / plaintiff filed a suit for declaration and permanent injunction. It is admitted between the parties that when amendment application dated 26.08.2014 was filed, the trial had already commenced. Thus, the only question is whether in this application 'due diligence' was shown by the defendant No.4 This is trite in view of judgment of Vidya Bai and ors Vs. Padmalatha and Anr., 2009 2 SCC 409that after insertion of proviso to Order 6 Rule 17 C.P.C., party seeking amendment after commencement of trial must show "due diligence". Unless 'due diligence' is established, which is held to be jurisdictional fact in Vidya Bai , the court has no jurisdiction to entertain the amendment application.

(3.) Shri Rajnish Sharma, Advocate for the petitioner, by taking this Court to earlier application filed by defendant No.4, contends that reason assigned in amendment application that plaintiff has started construction slowly on the suit property, was very much known to the defendant No.4 before commencement of trial. In other words, it is contended that in view of averment of said application, it is clear that defendant No.4 was aware about the subsequent event. Another application was filed after commencement of the trial and therefore, reason assigned cannot be said to be showing "due diligence".