The phrase “due diligence” came for consideration before the Supreme Court in Chandra Kanta Bansal v. Rajinder Singh Anand, 2005 (34) AIC 249 (SC) : (2005) 6 SCC 344, in which it has been held that the words “due diligence” have not been defined in the CPC. 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 (18th 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 (Permanent Edition 13-A) “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 Hon’ble Apex Court again in J. Samuel v. Gattu Mahesh, 2012 (115) RD 533, held that due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. The term “due diligence” determines the scope of a party’s constructive knowledge, claim and is very critical to the outcome of the suit.
Case :- MISC. SINGLE No. - 3472 of 2014
Petitioner :- Vidyawati
Respondent :- The State Of U.P.Thru Distt. Election Officer/D.M. Lakhimpur
Order Date :- 7.7.2014
Hon'ble Ram Surat Ram (Maurya),J.
Citation: 2014 124 RD722
1.
Heard Sri Ram Kumar for the petitioner and Sri J.B. Singh for the
respondent-3.
2.
The writ petition has been filed against the order dated 28.6.2014 by
which amendment application filed by the petitioner to amend the written
statement, has been dismissed.
3.
Shashi Singh (respondent-3) filed an election petition against the
declaration of election result of the petitioner as Pradhan of Gram Panchayat
Mohaddinpur, tehsil Mohammadi, district Khiri. The petitioner, who is
elected Pradhan, filed her written statement on 10.8.2011. Thereafter the
issues in the election petition were framed on 19.1.2012. Earlier the
petitioner filed an application for amendment of written statement, which
was allowed. Thereafter she filed a subsequent application dated 22.8.2012
for amendment of the written statement, in which she proposed to
incorporate paragraph 27 of the written statement to the effect that the
respondent -3 had not deposited the amount as required under Rule 3 of UP
Panchayat Raj (Settlement of Election Dispute) Rules 1994, in personal
ledger account of Gram Panchayat Mohaddinpur and the election petition
was liable to be dismissed. The application of the petitioner has been
rejected by Election Tribunal on the ground that the amendment application
has been filed to delay of hearing the election petition. Hence this writ
petition has been filed.
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4.
The counsel for the petitioner submits that the petitioner has raised the
ground relating to the maintainability of the election petition as the
compliance of Rule 3 of UP Panchyat Raj (Settlement of Election Disputes)
Rules 1994 is mandatory and in the absence of its compliance the election
petition was liable to be dismissed. The amendment application ought to
have been allowed and such an amendment can be permitted to be made at
any stage of the suit. The amendment application has been rejected only on
irrelevant consideration that it has been filed to delay the proceeding. The
observation made by the Election Tribunal in this respect is based upon
conjuncture and surmise also.
5.
I have considered the argument of the counsel for the petitioner. A
perusal of the election petition shows that in paragraph 9 of the election
petition, respondent-3 has disclosed that the required amount has been
deposited by her on 4.1.2010, 22.11.2010 and 21.11.2010. The petitioner, in
her written statement, has replied this paragraph and stated that the amount
deposited by the plaintiff was less than the required amount, thereafter this
proposed amendment application has been filed. Under Order VI, Rule 17
C.P.C. a proviso has been added in the year 2002 which causes a rider on the
power of the court in allowing the amendment application, to the effect that
after commencement of the trial the amendment application cannot be
allowed unless the court comes to the conclusion in spite of due diligence,
the party could not have raised the matter before the commencement of the
trial. In this case the allegation in respect of the deposit has been made by
the election petitioner in the election petition. While preparing the written
statement a reply of this paragraph has been given, therefore it cannot be
said that the proposed amendments were not in the notice of the petitioner
earlier and could not be noticed in exercise of due diligence.
6.
Order VI Rule 17 C.P.C., as amended in 2002, is quoted below:-
“17. Amendment of pleadings.—The Court may at any stage of
the proceedings allow either party to alter or amend his pleading 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
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determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after
the trial has commenced, 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.”
7.
Supreme Court in Salem Advocate Bar Assn. (II) v. Union of India,
(2005) 6 SCC 344, held that Order 6 Rule 17 of the Code deals with
amendment of pleadings. By Amendment Act 46 of 1999, this provision was
deleted. It has again been restored by Amendment Act 22 of 2002 but with
an added proviso to prevent application for amendment being allowed after
the trial has commenced, 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. The proviso, to some extent, curtails absolute
discretion to allow amendment at any stage. Now, if application is filed after
commencement of trial, it has to be shown that in spite of due diligence,
such amendment could not have been sought earlier. The object is to prevent
frivolous applications which are filed to delay the trial. There is no illegality
in the provision.
8.
The phrase “due diligence” came for consideration before Supreme
Court in Chander Kanta Bansal v. Rajinder Singh Anand, AIR 2008 SC
2234, in which it has been held that the words “due diligence” have not been
defined in the Code. According to Oxford Dictionary (Edn. 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 (18th Edn.), “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 Edn. 13-A) “due diligence”, in law, means doing everything
reasonable, not everything possible. “Due diligence” means reasonable
4
diligence; it means such diligence as a prudent man would exercise in the
conduct of his own affairs.
9.
Supreme Court again in J. Samuel v. Gattu Mahesh, (2012) 2 SCC
300, held that due diligence is the idea that reasonable investigation is
necessary before certain kinds of relief are requested. Duly diligent efforts
are a requirement for a party seeking to use the adjudicatory mechanism to
attain an anticipated relief. An advocate representing someone must engage
in due diligence to determine that the representations made are factually
accurate and sufficient. The term “due diligence” is specifically used in the
Code so as to provide a test for determining whether to exercise the
discretion in situations of requested amendment after the commencement of
trial. A party requesting a relief stemming out of a claim is required to
exercise due diligence and it is a requirement which cannot be dispensed
with. The term “due diligence” determines the scope of a party’s
constructive knowledge, claim and is very critical to the outcome of the suit.
In the given facts, there is a clear lack of “due diligence” and the mistake
committed certainly does not come within the preview of a typographical
error.
10.
In view of aforesaid discussion, I do not find any merit in the case.
The writ petition is dismissed.
Order Date :- 7.7.2014
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