Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J., while allowing the instant petition, set aside the order of trial Court, thereby allowing the amendment of the plaint contrary to the provisions of Code of Civil Procedure.

In the present case, respondent instituted a suit before trial Court for obtaining a decree of declaration that respondent has got the absolute title, ownership and possession over the property described in the plaint, schedule C and also a decree of prohibitory injunction restraining the appellant from trespassing into that property. After commencement of the examination of witnesses in the suit, the respondent filed an application (Ext.P5) under Order VI Rule 17 of the Code of Civil Procedure, 1908 for amendment of the plaint, which was allowed by the trial Court.

The impugned order of the Trial Court was challenged in the instant petition. One of the main contentions raised by the petitioner was that the application for amendment of plaint cannot be allowed since it was filed by the respondent after the commencement of the trial of the suit.

While ascertaining the date of trial the Court reiterated its decision in Sasidharan v. Sudarsanan, 2020 SCC OnLine Ker 4540, wherein it was held that, “the trial in a suit commences on the date on which the affidavit in lieu of examination-in-chief of a party or his witness is filed for the purpose of recording evidence.” The Court further relied on Vidyabai v. Padmalatha, (2009) 2 SCC 409, where it was held by the Supreme Court that,

 “Order 6 Rule 17 CPC is couched in a mandatory form. Unless the jurisdictional fact, as envisaged in the proviso to Order 6 Rule 17 CPC is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint.”

The Court observed that the trial court has not considered whether the objections raised by the respondent are legally sustainable or not. Hence, the Court set aside the impugned order with the directions that the application is remanded to the trial court for fresh consideration and disposal. The trial court was directed to consider all relevant contentions raised by both parties and dispose of the application in accordance with law by a speaking order, within a period of one month from the date of production of a certified copy of this judgment. [T.V. Sasikala v. C.P. Joseph, 2020 SCC OnLine Ker 7702, decided on 21-12-2020]

New releasesNews


Hemant K. Batra is a Strategist Business, Corporate, Commercial, and Policy Lawyer for nearly 3 decades. He is the elected vice-president of SAARCLAW and is associated with various projects of UN, UNDP, UNAIDS, UN-ESCAP, and ADB. He is chair of the South Asia Committee of Indian National Bar Association. He is a mentor at several prestigious schools of business and a lifetime member of the General Assembly of the Union of International Association, Brussels. He also holds prestigious positions in several international organizations of repute and has been a guest speaker at more than 150 international conferences, etc. He has written and lectured widely. He is a well-acclaimed writer with 5 books to his credit. He was awarded the prestigious Mahatma Gandhi Seva Medal by the Gandhi Global Foundation.

Diligence means carefulness or thoroughness in relation to any task and activity. Due diligence is necessary for any commercial transaction that may involve an asset acquisition, equity or stock purchase, joint-venture, amalgamation, licensing, takeover or merger.  In fact, it may be critical before signing any contract or agreement.

The work has relevance for every corporate house, corporate law firm, business analysts, and the like.

The work consists of 6 chapters: 

Chapter 1: Understanding the Meaning of the Simple Dual or Combo Word named “Due Diligence”.

Chapter 2: Why Do Due Diligence?

Chapter 3: Who Needs Due Diligence?

Chapter 4: Findings of Due Diligence.

Chapter 5: Practicing Due Diligence.

Chapter 6: Due Diligence Review and Result Reporting

Even though this is a legal book, it is written in a style that is easy to understand for even a layman. … A must-read for any professional looking to be a part of India’s vibrant M&A industry.

Vivek Law, Senior Business Journalist;

Founder and Editor in Chief, The MoneyMile

… Numerous real-life examples helpfully illustrate many of the issues and pitfalls awaiting the unwary. A sample due diligence checklist provides a useful starting point.

Toby Greenbury, Director, Wilderness Capital Partners Limited;

Former Partner, D.J. Freeman;

Former Partner, Mishcon de Reya

The book is organised very systematically with the opening chapter devoting considerable time and space to arriving at a definition, understanding the meaning and importance of due diligence (Chapters 1 to 2), for whom and how to conduct a due diligence (Chapters 3 and 4), explaining the practical aspects of due diligence process (Chapter 5), reviewing the findings and reporting them in a structured manner, so that the user can make sense out of a detailed study (Chapter 6). …The book is replete with cases, judgments and stories that make it even more interesting.

K.R. Sekhar, Managing Director, Bayer Group Company

An outstanding handbook or operating manual for those engaging in due diligence relating to business or asset acquisitions. Highly recommended.

Fayez Al-Doasri, Senior Partner, Adel Abdulhadi; Al Oula Former Legal Adviser, Kuwait Fund for Economic Development

This primer edition “Due Diligence” by Mr Hemant Batra, Lawyer and Policy Expert, lucidly discusses the manifestation and path of due diligence from a legal and business perspective.

–Prof. (Dr) Ranbir Singh, Vice-Chancellor, NLU, Delhi;

Member, Board of Management,

International Association of Universities (IAU), Paris

Ready to get a Copy?

Please have a look at the link below-

Case BriefsHigh Courts

Allahabad High Court: Yogendra Kumar Srivastava, J. dismissed the revision petition on the ground that the revisionist was not able to show material error or irregularity in the order passed by the courts.

A revision petition was filed against the order of Additional District Judge where the amendment sought by the revisionist-defendant in the written statement was rejected.

Sanjay Maurya and Deepak Kumar Jaiswal, counsels for the revisionist submitted that under Order 6 Rule 17 of the Code of Civil Procedure, 1908 the court may at any stage of proceeding allow the amendment of the pleading which was rejected by the trial court without recording any finding to arrive at the conclusion that in spite of due diligence the defendant could not have sought the amendment before the commencement of the trial.

Counsel for the respondent submitted that in this case after framing of issues dates were fixed for evidence of the parties and amendment was sought by the defendant tenant only as a dilatory tactic so as to delay the proceedings.

The lower court while rejecting the amendment application had referred to the proviso in Order 6 Rule 17 of CPC in terms of which no application for amendment was to be allowed after the trial had commenced unless the court comes to the conclusion that in spite of the due diligence the parties could not have raised the matter before the commencement of trial. The reason assigned by the defendant-tenant in his application to support his prayer for the amendment was the engagement of a new counsel which was held by the court below to be insufficient. Reliance was placed upon the case of Revajeetu Builders and Developers v. Narayanaswami and Sons.

The Court discussed the “due diligence” which was added by the Amendment Act, 2002 and opined thatthe term “due diligence” has been specifically used so as to provide a test for determining whether to exercise the discretion in situations where amendment is being sought after the commencement of the trial.”

The Court held that “court below has come to the conclusion that the amendment which was being sought was not imperative for determining the real question in controversy between the parties, and also that the same was barred by the proviso to Order 6 Rule 17 CPC which curtails the discretion to allow amendment of pleadings after the trial has commenced, and introduces the “due diligence” test in terms whereof the burden is on the person seeking the amendment after commencement of trial to show that in spite of “due diligence” such an amendment could not have been sought earlier, and as such the order passed by the trial court cannot be faulted with”. Another judgment which was noted by the court was that of Mundri Lal v. Sushila Rani, (2007) 8 SCC 609 in which it was held that “There are very limited grounds on which there can be interference in exercise of jurisdiction under Section 25 of Provincial Small Cause Courts Act, 1887; they are, when (i) findings are perverse or (ii) based on no material or (iii) findings have been arrived at upon taking into consideration the inadmissible evidence or (iv) findings have been arrived at without consideration of relevant evidence.”

The Court thus held that the revisionist was not able to point out the material error or irregularity in the order passed by the courts below so as to warrant the interference in exercise of revisional jurisdiction under Section 25 of the Provisional Small Cause Court Act, 1887.  Thus, the revision petition was dismissed.[Hari Narayana v. Shanti Devi, 2019 SCC OnLine All 2380, decided on 28-05-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Amit Rawal J., dismissed the second appeal petition on the ground that there was no substantial question for determination.

The regular second appeal was preferred at the instance of the appellant/defendant against the decretal suit against the injunction order to her to not to interfere in the subject land.

The respondent-plaintiff alleged that plaintiff and defendant had joint land which was purchased by the plaintiff for Rs 1 lakh for the purpose of passage. The defendants were extending threats for construction on the land including 1 biswa and perpetually requested but resulted into celandra under Section 107(151) of Code of Criminal Procedure, 1973.

Sanjiv Gupta, counsel for the appellant/defendant submitted that suit for the injunction prima facie as per the record of local commissioner reflecting the possession of 1 biswa more than her ownership, was not maintainable. In the absence of relief of mandatory injunction, decree qua relief of possession could not be moulded under the provisions of Order 7 Rule 7 of Code of Civil Procedure, 1908.

The defendant opposed the suit and denied the averments and stated that she was the owner of the land measuring six biswa as per the registered sale deed.

Court opined that “litigants are required to exercise the due diligence in the pursuing the remedy particularly when the appellant had assailed the judgment and decree of the trial Court before the Lower Appellate Court. There is no equity on the person who has been found to be in alleged encroachment” Thus, the petition was dismissed.[Sabri v. Gulzar Ahmed, 2019 SCC OnLine P&H 708, decided on 24-05-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Prabhat Kumar Jha, J. dismissed a petition filed against an order allowing production of additional documents.

Petitioner herein filed an eviction suit against one Rajendra Mistri, which was decreed in his favour. Respondents herein (who are widow and sons of Rajendra Mistri) filed an appeal against the said decree along with an application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 for bringing additional documents on record. The said application was allowed by the learned District Judge. Aggrieved thereby, the instant petition was filed.

The Court noted that respondents were not aware of the pendency of the eviction suit filed by the petitioner. Rajendra Mistri, who was contesting the suit, became traceless in the middle of hearing, and the suit was decided without allowing the defendant to produce any documentary evidence as the fact of him being traceless could not be brought to the knowledge of the court. When the suit was decreed, his legal heirs got knowledge about this fact and filed an appeal along with a petition stating that they had no knowledge about the pendency of the suit. They also filed an application for adducing additional documents which had a bearing on merits of the case. On consideration of these facts, the learned District Judge allowed their petition for adducing additional evidence

Order 41 Rule 27(1)(b) of CPC clearly envisages that party seeking to produce additional evidence, must establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. It was held that respondents’ case clearly fell within the purview of said provision and thus there was no infirmity in the impugned order.[Vijay Kumar Singh v. Soni Kuer, 2018 SCC OnLine Pat 2292, Order dated 06-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Rajendra Menon, CJ and V. Kameswar Rao, J. allowed a letters patent appeal against the judgment of the writ court whereby the appellants petition for compensation of his son was dismissed.

On the fateful day, the appellant and his 14-years old son had gone to Sanjay Park maintained by Respondent 1 — East Delhi Municipal Corporation, where while playing cricket the son came in contact with an electric wire lying there and was electrocuted which resulted in his death. In the action brought for compensation by the appellant, the respondents started to shift the liability on each-other, Respondent 2 being BSES, the company responsible to maintain the electricity system in the said park. The writ court dismissed the action holding that there was a dispute as to who was responsible and such a question could only be looked into by the trial court.

The High Court was of the view that approach of the writ court was not right. The Court was of the view that the negligence on the part of respondents was writ large in the improper manner of maintaining the electricity system. It was of the view that the death of deceased was caused due to negligence of the respondents. In such situation, according to the High Court, the writ court ought not to dismiss the valid claim for compensation brought by the appellant. Holding thus, the only question left was of assessing the amount of compensation to be awarded to the appellant for the death of his 14-years old son. After applying the proper formula, the Court assessed the amount of compensation at Rs 27,38,607.81 along with interest. At first, both the respondents shall each pay 50% of the amount and thereafter they could work a settlement amongst themselves. The appeal was disposed of in the manner above. [Rajeev Singhal v. MCD, 2018 SCC OnLine Del 11518, dated 27-09-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A petition filed under Article 227 of the Constitution against the order of the Additional District Judge whereby he allowed respondents’ application for adducing additional evidence, was allowed by a Single Judge Bench comprising of Tarlok Singh Chauhan, J.

The matter related to a Will and mutation of certain properties. The parties were contending a suit in regard to the same in the lower courts. In the said suit, the respondents filed an application before the Additional District Judge for adducing additional evidence under Order 41 Rule 27 CPC which was allowed. Aggrieved by the same, the petitioners preferred the instant petition.

The High Court perused the record and found that earlier the respondents had filed an application before the trial judge for producing the mutation under Order 8 Rule 1-A of CPC which was dismissed. Hence, the same applied as res judicata against the similar relief sought in subsequent application as the order of trial court was never assailed by the respondents. Further, the documents sought to be produced now were already in the knowledge of the respondents being public documents as asserted by the respondents themselves. The Court held that for seeking relief under Order 41 Rule 27, it was necessary for the party seeking such relief to have exercised due diligence in not having faulted to produce documents at an earlier stage. Duly diligent efforts are the requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. However, in the instant case, as noted above, the respondents were not diligent in producing the documents at the appropriate stage even when it could have been done. Thus, the Court found that it was not a case where benefit under Order 41 Rule 27 ought to have been granted to the respondents. Hence, the petition was allowed and the impugned order was set aside. [Rattan Chand v. Duni Chand, 2018 SCC OnLine HP 613, dated 21-5-2018]

Supreme Court

Supreme Court: The Bench comprising of Anil R. Dave, Vikramajit Sen and U.U. Lalit, JJ., held that the Medical Council of India (MCI) and the Central Government must show due diligence right from the day when the applications preferred in respect of Medical Colleges are received. The MCI and the Central Government have been vested with monitoring powers under Section 10A of the Indian Medical Council Act, 1956 and the Regulations framed under the Act. It is expected of these authorities to discharge their functions well within the statutory confines as well as in conformity with the Schedule to the Regulations. If there is inaction on their part or non-observance of the time Schedule, it is bound to have adverse effect on all concerned.

The Court while clubbing a bunch of petitions emanating out of disapproval of applications (relating to  increase in number of seats in existing institutions, institutions which were sought to be established for the first time and institutions seeking renewal of permission) preferred in respect of Medical Colleges for the academic year 2014-2015 issued by the Central Government, basing on the reason that the MCI, after scrutiny, had found infirmities or inadequacies in the infrastructure, facilities and faculty in the said colleges, though the respective applicants Colleges  claimed to have rectified the shortcomings and asked for compliance verification which was subsequently refused by the Central Government and/or the MCI refused for want of adequate time.

The Supreme Court slammed the Central Government and MCI by referring to the delay, as it not only caused loss of opportunity to the students’ community but at the same time caused loss to the society in terms of less number of doctors being available. Therefore, they must show due diligence as stated above. The schedule giving various stages and time limits must accommodate every possible eventuality and at the same time must comply with the requirements of observance of natural justice at various levels. Moreover the court directed them to discharge their functions in accord with the concerned Regulations and the Statute in keeping the observations made by the court. It also said that the central government had been empowered to make minor adjustments in the schedule for inspection and grant of permission to medical colleges. However, the bench clarified that the September 30 deadline to complete admissions to all MBBS seats must be scrupulously adhered to. Royal Medical Trust v. Union of India,  2015 SCC OnLine SC 740Decided on 20.08.2015