MEMORANDUM FOR PETITIONER

Team Code:

CMR VI NATIONAL LEVEL

MOOT COURT COMPETITION, 2018

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

IN THE MATTER OF

S.L.P. CIVIL NO. ——— OF 2018

1] MRS. LISA KAMATH ….PETITIONER

Vs.
2] MR. RAJENDRA THOMAS ….RESPONDENT

SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 OF THE

CONSTITUTION OF INDIA

BEFORE THE HONOURABLE 3 JUDGES OF SUPREME COURT BENCH

SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF

INDIA CHALLENGING THE FINAL JUDGEMENT AND ORDER DATED
13/12/2017 PASSED BY THE HON’BLE MAHANAGARA HIGH COURT.

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER

COUNSEL APPEARING ON BEHALF OF THE PETITIONER

 MEMORANDUM FOR PETITIONER

TABLE OF CONTENTS

Table of Contents………………………………………………………………………
List of Abbreviation…………………………………………………………………….
List ofAuthorities……………………………………………………………………….

Cases Referred ...................................................................................................

Books Referred ...................................................................................................

Legal Databases ..................................................................................................

Lexicons ...............................................................................................................

Legislations .........................................................................................................

Conventions ........................................................................................................

Statement of Jurisdiction

Statement of Facts

Issues Presented

Summary of Pleading

Detailed Pleadings

I. Whether a new legal opinion, in the context of a plausibly demonstrable error on

the law in existing pleadings, can be a factor while examining “ due diligence”
expected from a party to legal proceedings under the proviso to Order VI Rule 17 of
the CPC 1908?

[I.1] Whether the consent decree in partition suit dated 14.07.2.11 was
obtained by fraudulently or intention to deceive?
[I.2] Whether the new legal opinion can be considered for amendment of
Written Statement is Dismissed or allowed?
A] Amendment mandatory or necessary.
B] “Due Diligence” under Order VI rule 17 satisfied or not.
C] Principals of Natural Justice
 MEMORANDUM FOR PETITIONER

List of Abbreviation

AIR All India Report

Regd Registered

Co. Company

Edn/Ed. Edition

ER English Report

Anr Another

Ors Others

Etc Etcetera

Vol Volume

SC Supreme Court

SCC Supreme Court Report

SCR Supreme Court Record

Id. Ibid

Ltd Limited

UID Unique Identification

UIDAI Unique Identification Authority of India

Paragraph

Hon’ble Honourable

u/s Under Section

UOI Union of Indiana

 MEMORANDUM FOR PETITIONER

INDEX OF AUTHORITIES

CASES REFERRED

1] Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295

2] Thornburgh v. American College of Obstetricians & Gynecologists, 476 US 747, 772

(1986)

3] I.R Coelho V. State of Tamil Nadu AIR 2007 SC 861

4] R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264

5] Kesavananda Bharti Sripadagalvaru &Anr. v. State of Kerala & Ors., AIR 1973 SC
1461.

6] Olmstead v. United States, 277 US 438 (1928)

7] Griswold v. Connecticut, 381 U.S. 479 (1965)

8] Justice K.S.Puttaswamy(Retd). v. Union Of India & Ors, Writ Petition (Civil) No.494
Of 2012

9] District Registrar v. Canara Bank,(2005) 1 SCC 496

10] Mehmood N. Azam v. State of Chhattisgarh, Civil Appeal No. 5703/2012.

11] PUCL v. Union of India, (1997) 1 SCC 301

12] Mr. X v. Hospital Z, (1998) 8 SCC 296

13] Sharda v. Dharmpal, (2003) 4 SCC 4931

14] Griswold v. Connecticut, 200 A.2d 479, 381 U.S. 479 (1965)

15] Eisenstadt v. Baird, 1029 L.2d 349,405 US 438 (1972).

16] M.P. Sharma & Others v. Satish Chandra & Others, AIR 1954 SC 300

17] R. C. Cooper v. Union of India, (1973) 3 SCR 530

18] Roe v. Wade, 410 U.S 113(1973).

 MEMORANDUM FOR PETITIONER

19] Selvi v. State of Karnataka 2010(7) SCC 263

20] A.K Gopalan v. Union of India, (1950) SCR 88

21 Govind v. State of Madhya Pradesh, AIR 1975 SC 1378

22] Maneka Gandhi v. Union of India, 1978 SCR (2) 621

23] Malak Singh v. State of Punjab (1981) 1 SCC 420

24] Ram Jethmalani and Others v. Union of India and Others, (2011) 8 SCC 1

25] Bishan Dass vs. State Of Punjab, (1961) AIR 1570

26] Justice K.S. Puttaswamy and others V. Union of Indian and others W.p372/17 SC
2017.

BOOKS REFERRED

1. Basu, Durga Das, Shorter Constitution Of India 396 (14th ed., 2012)

2. Aggrawal, J.P., Pleadings and Precedents in India (3rd ed., 2012)

3. Shukla, V.N. , Constitution of India – (12th Ed., 2014)

4. Jain, M.P., Indian Constitutional Law – (7th Ed. 2014)

5. Joga Rao, S.V., Computer Contracts And Information Technology Law 970 (Wadhwa &
Nagpur)

(2003).

6. The Information Thecnology Act 2000 current publication Bare Act

7. The AADHAAR ( Targeted Delivery of Financial And Other Subsidies And Services)
Bill 2016

LEGAL DATABASES REFERRED

1. Manupatra Online Resources, http://www.manupatra.com.

2. Lexis Nexis Academica, http://www.lexisnexis.com/academica.

 MEMORANDUM FOR PETITIONER

3. SCC Online, http://www.scconline.co.in.

4. Oxford Dictionary, http://www.oxforddictionaries.com

5. Supreme Court of India, http://supremecourtofindia.nic.in/

6. West Law, http://www.westlawindia.co

7. Hein Online, http://home.heinonline.org/

LEXICONS

1. Aiyar Ramanathan P , Advanced Law Lexicon, 3 rd Edition, 2005, Wadhwa Nagpur.

2. Garner Bryana, Black‟s Law Dictionary,7th Edition,1999

LEGISLATIONS

1. The Constitution of India, 1950

2. Information Technology Amendment Act 2008

3. Right to Information Act 2005

7. U.S. Privacy Act of 1974

8. U.S. Computer Matching and Privacy Act, 1988

CONVENTIONS

1. United Nation Declaration of Human Rights, 1948

2. International Convention on Civil and Political Rights, 1966

3. International Covenant on Economic, Social and Cultural Rights, 1966

4. United Nation Declaration on Indigenous People, 2007

5. European Convention on Human Rights, 1953

 MEMORANDUM FOR PETITIONER

STATEMENT OF JURISDICTION

The Petitioner has approached the Hon’ble Supreme Court of Indiana under Article
32 of the constitution of Indiana

1. Jurisdiction vested in the Supreme Court is exercisable only for the enforcement of
the Fundamental Right conferred by Part III of the Constitution.

2. The Art.32 also guaranteed the right of PIL .

 MEMORANDUM FOR PETITIONER

I. Whether a new legal opinion, in the context of a plausibly demonstrable error on

the law in existing pleadings, can be a factor while examining “ due diligence”
expected from a party to legal proceedings under the proviso to Order VI Rule 17 of
the CPC 1908?

Petitioner humbly submits that the amendment application made on dated 9/03/2016 in the
written statement under the requirement of “Due Diligence” as per the order 6 rule 17 of
the CPC 1908 is appropriate. And the Trial Court passed the Judgement and order dated
7/08/2014 is not appropriate and it was passed by suppression of vital document i.e Will.
Petitioner has also challenged the judgment and order passed by High Court dated
13/12/2017 by Special leave Petition in front of this honourable bench.

[I.1] Whether the consent decree in partition suit dated 14.07.2011 was obtained by
fraudulently or intention to deceive?

Petitioner submits that the “Consent Decree” passed dated 14/07/2011 in a Partition Suit in
favour of Respondent is taken by fraudulently and intentionally to deceive the Petitioner
mother. The original suit property is belonging to Mr. Birendra Thomas. He was died on
06/11/2007 without any surviving children and Respondent [Mr.Rajendra Thomas] and
Petitioner mother has only possible legal heirs. Mr. Birendra Thomas has made a will
dated 01/11/2007 and vested suit property to Petitioner mother by this will. The original
copy of Will dated 01/11/2007 is in custody of Mr. Rajendra Thomas. The Petitioner
mother is totally deprived from this Will therefore Petitioner mother was agreed by way of
compromise in Consent Decree passed on dated 14/07/2011. The Respondent had taken de
jure Possession and purported the title over the suit property in suit 197/2014 is by way of
Fraud and suppression of Vital document i.e Will from the court and Petitioner mother.

A] Under the Tort the element of “Deceit” was applied –

In the case of Diamond V. Bank of Londan & Montreal Ltd. There are discussed four
elements in this tort

1) There must be a false representation of facts .

2) The representation must be made with knowledge of its falsity.

 MEMORANDUM FOR PETITIONER

3) It must be made with the intention that it should be acted on by the Plaintiff or by a
class of person . Which includes the Plaintiff, in the manner which results in damages to
him.

4) It must be proved that the Plaintiff has acted upon the false statement and has
sustained damages by so doing.

In another case Brownlie V. Campbell stated that “ it is the plaintiff duty to disclose the
truth”

In leading case Derry V. Peek in that case the House of Lord held that, “Where the fact
that an alleged belief was destitute of all reasonable foundation would suffice of itself to
convince the court that it was not really entertained, and that the representation was a
fraudulent one.”

In another recent case Leni Gas and Oil Investment Ltd and another V. Malta Oil Pty ltd
and another examined the legal principles applicable to the tort of deceit. Deceit is a tort
(wrong) arising out of a false statement of facts made by one person/entity, knowingly or
recklessly, with the intention that it should be acted upon by another person/entity, who
suffer damage as a result.

Petitioner submits that, Respondent committed the tort(wrong) is liable under the elements
of Deceit . As per the concept of deceit elements of tort the Respondent was made a false
representation of facts and intentionally deceives to Petitioner mother. The Respondent has
well aware and knowledge regarding to the existence of will regarding suit property
therefore Respondent was committed the tort( civil wrong). The Consent Decree passed in
the Partition Suit is nullity because it was taken by the fraud, knowingly
misrepresentation of facts and suppression of vital documents i.e will.

[I.2] Whether the new legal opinion can be considered for amendment of Written
Statement is Dismissed or allowed?

Under the Civil Procedure Code 1908 Order 6 Rule 17 divided into 2 parts-

1) The court may at any stage of the proceeding 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 determining the real questions in
controversy between the parties.
 MEMORANDUM FOR PETITIONER

2) Provided that no application for amendment shall be allowed after the trial has
commenced, unless the court come to the conclusion that in spite of due diligence, the
matter before the commencement of trial.

In the case 1992 Punj.L.J.121 stated that, “While under the first part of Order 69 Rule 17 it
is left to the discretion of the court to amend or not, the second part of the rule makes it
imperative on the court to make all such amendments as may be necessary for determining
the real matter in controversy between the parties.

It is the mandatory and necessary to the court to amend the written statement
dated14/07/2011 as per the application for amendment dated 9/03/2016 because it is
necessary for determining the real matter in controversy between the parties without the
amendment it was not define real controversy between the parties.

In case N. E Railway Administration, Gorakhpur V. Bhagwan Das AIR 2008 SC 2139

Amendment of pleading permissible even at appellate stage if it satisfies the two

conditions , Firstly, such amendment should not cause injustice to other side and secondly
it must be necessary for the purpose of determing the real question of controversy between
the parties.

At the time of partition suit petitioner and his mother not to know about the existence of
will and that time original copy of will it was in custody of respondent he was suppress the
vital document i.e will from court and petitioner mother. On November 2012 thr petitioner
mother has know about the existence of will regard suit property. On 2013 the petitioner
mother was died and petitioner was only one legal heir without any survivors. Than on
dated 16/01/2014 respondent was file the Special Civil Suit No. 197/2014 against
petitioner and pray that grant an injunction for alienating and dealing with the suit
property. On 6/03/2014 petitioner was file a written statement in Special Civil Suit
no197/2014 and given the reply to application/prayer for interim injunction. Petitioner
inter alia averred that-

“ The said consent decree is contrary to law in view of will dated 1/11/2007 left by Mr.
Birendra Thomas i.e the original owner of suit property and defendants mother eldest of
two brothers/siblings Further as per the aforesaid will, the suit property has been left to the
defendant mother.”[Filed by 1st Advocate]
 MEMORANDUM FOR PETITIONER

During the oral submission on the application/prayer for interim injunction the advocate
for Respondent [Mr. Rajendra Thomas] inter alia forcefully submitted that in view of order
23 Rule 3A of the code of civil procedure 1908 it was impermissible to directly or
indirectly question the lawfulness of a consent decree that had been arrived at as a
compromise between parties to legal proceedings.

On that point petitioner here submitted that at the time of partition suit dated 14/07/2011
the petitioner mother has not to know about the existence of will. It is only know about the
existence of will in November 2012 and till November 2012 the original copy of will is in
custody of Respondent. The consent decree was passed by fraud and suppression of vital
documents from court and petitioner mother.

In the case Horil V. Keshav and Another,2012 (1) SCCR 339 In this case appeal was filed
against the judgement and order passed by the Allahabad High Court by which it allowed
the writ petition filed by respondent Nos1 & 2 set aside the order passed by the district
judge. Affirming the order of the munsif , and held that the suit filed by the appellant was
not maintainable being barred in term of order XXIII Rule 3-A of the CPC. The
compromise decree was passed by the fraudulently without knowing to the petitioner
father. The preferred appeal in High Court and passed same decree as per district court and
Supreme Court allowed the appeal.

As per the psychological fact it was clear that, respondent was directly interested in the
suit property and till he was interested. Hence it is totally pre planning intentionally
deceive to petitioner mother and also guilty for contempt of court by suppression of vital
documents from court.

B] “Due Diligence” under Order VI rule 17 satisfied or not.

Petitioner was clear about the fraud was done by the respondent in consent decree after the
opinion of new advocate. The petitioner want the amendment in written statement under
the order VI rule 17 and take averment/defence was that the consent decree was contrary to
law in view of the will. Petitioner humbly submitted that existing written statement was
deficient without the taking plea regarding case of fraud and also it must be necessary to
take this statement in record at time of cross-examination and plausibly address such
deficiency.
 MEMORANDUM FOR PETITIONER

Test of “Due Diligence”

As per the Order VI Rule 17 Clause 2 was added by the amendment on dated 2002 and
stated that, “Provided that no application for amendment shall be allowed after the trial has
commenced, unless the court come to the conclusion that in spite of due diligence, the
matter before the commencement of trial”.

On dated 6/03/2014 the original written statement was made by the petitioner council is
error and efficiency in nature therefore petitioner has suffer a lot because Petitioner is the
janitor in a primary school in village therefore he was not well known the legal knowledge
or legal points. Petitioner appointed the council on behalf of him to represent his case but
due to lack of legal knowledge and error and deficiency by the council the petitioner was
suffer a lot .

In the case Fritiz T.M Clement and Ant. V. Sudhakaran Nadar and Anothers in this
case, suit was filed for recovery of money with future interest towards path way fee and
quarrying fee for various period. The amendment application was filed at a stage when the
suit was ripe for trial. In the affidavit filed in supports of the amendment application it is
stated that certain omissions and mistakes creeper into the plaint inadvertently and on
account of the wrong advice given by the previous council engaged by the plaintiffs. Held
that, the orders of the High Court as well as the order of the trial court are set aside and
appeal is allowed accordingly.

New legal opinion must be necessary to petitioner for his justice because the earlier
council nevertheless doing the best possible for her and told her that her position in the suit
was very week . As per opinion of new advocate is pointed out that the consent decree is
contrary to law in view of will and it is nullity when it was obtained by fraud. As seen the
principle of natural justice it was necessary to amend the written statement. Because it is
the earlier councils fault and due to the totally absence of legal knowledge petitioner was
not aware the legal points. It was new relevant fact come in front of court as per
amendment application on dated 09/03/2016 and it must be necessary to allowed the
amendment in view of natural justice.

In the case of Punjab National Bank V. Indian Bank 2003 (2) SCCR 520 stated that,
“After amendment in 2002 barred after commencement of the trial unless court feels that
in spite of due diligence party could not have raised issue before commencement of trial”.
 MEMORANDUM FOR PETITIONER

The concept of Due Diligence under Order VI rule 17 is satisfied but trial court pointed out
that the provision was a jurisdictionally bar there for the application was rejected on reason
of not satisfied the test of Due Diligence.

In the case Mudra Salt and chem. V. Collector Thane 2001 (3) Mh.LJ In this case
jurisdiction was in issue in the matter of application for amendment of plaint. Court held
that the purpose and object of Order VI Rule 17 of the CPC is to allow either party to alter
or amend his pleadings in such a manner and on such terms as may be just. All amendment
should be allowed which are necessary for the purpose of determining the real question in
controversy between the parties. The appellate court rejected application is set side and
held that the trail court passed the rejecting the application for amendment was held wrong
and amendment plaint is allowed.

In another case which is referred in the earlier point, N. E Railway Administration,

Gorakhpur V. Bhagwan Das AIR 2008 SC 2139 “Amendment of pleading permissible
even at appellate stage if it satisfies the two conditions , Firstly, such amendment should
not cause injustice to other side and secondly it must be necessary for the purpose of
determing the real question of controversy between the parties.”

In the case of Sampath Kumar V. Ayyakannu & Ano. 2002 SAR (Civil) 854 In this case trial
court and high court rejected the amendment application but Supreme Court allowed
appeal and held that the amend the application for avoiding multiplicity of legal
proceedings.

Principals of Natural Justice.

Facts and circumstances evidence come before the court it was clear that the consent
decree was nullity as it is obtained by fraud and the error and deficiency by the earlier
council petitioner was suffer a lot also injustice happened every time against the petitioner.

Petitioner seeking in front of this court as seen the principal of natural justice it is
mandatory to the court to allowed application of amendment and set aside the order and
judgement passed by the trial court and high court.

In the case L.J. Leach and Co. Ltd and others V. M/S Jardine Skinner and Co. AIR 1957
SC 357 Said that, it is no doubt true that courts would as a rule decline to allow
amendments if a fresh suit on the amendment claim would be barred by limitation on the
date of application. But that is a factor to be taken into account in exercise of the discretion
 MEMORANDUM FOR PETITIONER

as to whether amendment should be ordered and does not affect the power of the court to
order it, if that is required in the interest of justice.

In another case B.K.N.Pillai V. P.Pillai and others JT 1999 (10)SC 61 The purpose and
object of Order VI Rule 17 CPC is to allow either party to alter or amend his pleadings in
such manner and on such terms as may be just. The power to allow the amendment is wide
and can be exercised at any stage of the proceedings in the interest of justice on the basis
of guidelines laid down by various high courts and this court. It is true that the amendment
cannot be claimed as a matter of right and under all circumstances. But it is equally true
that the court while deciding such prayers should not adopted hypothetical approach,
liberal approach should be the general rule particularly in cases where the other side can be
compensated with the costs. Technicality of law should not be permitted to hamper the
courts in the administration of justice between the parties. Amendments are allowed in the
pleadings to avoid uncalled for multiplicity of litigation.

The same case was referred in case of Ragu Thilak D. Joshn V. S. Rayappan & others
2001(1) SCCR 449 Challenged the application of amendment of plaint in Supreme Court
was allowed by the Supreme Court with Cost.

In same case 2001(2) SCC 472 this court also observed that where the amendment was
barred by time or not was a disputed question of fact and therefore, that prayer for
amendment could not be rejected and in that circumstances the issue of limitation can be
made an issue in the suit itself.

In another case South Konkan Distilleries & others V. Prabhakar Gajanan Naik & others
2009 (1) SCCR 12 observed in para 8 of said decision, amendment must be necessary for
the natural justice. If such amendment is not allowed a petitioner who has prayed for such
an amendment, shall suffer irreparable loss and injury. It is always open to the court to
allow an amendment if it is of the view that allowing of an amendment shall really sub
serve the ultimate cause of justice and avoid further litigation.
 MEMORANDUM FOR PETITIONER

2] Whether the proviso to Order VI Rule 17 of the CPC 1908 applies to an amendment,
concerning fraud on the court, under the 2nd part of Rule 17 which is mandatory and
enjoins the Court that “all such amendment shall be made as may be necessary for the
purpose of determining the real question in controversy between the parties?
Petitioner council humbly submit’s that, the application on dated 09/03/2016 for the
amendment of original written statement [dated 06/03/2014] is necessary and mandatory for
define the real controversy between the parties. The consent decree dated 16/01/2014 passed
in the partition suit is nullity because it was obtained by fraud. At the time of partition suit the
original copy of will is in custody of Mr. Rajendra Thomas and he was suppress the vital
document i.e. will from court and petitioner mother therefore consent decree is contrary to
law in view of the will. The case of fraud and its details are necessary to specify in the written
statement but due to deficiency and error by the previous council of petitioner not take the
plea of fraud in the original written statement dated 06/03/2014 cause of lack of legal
knowledge and its effects on the petitioner right. As per the new legal opinion amendment
application for written statement on dated 09/03/2016 was made by the petitioner and
averment stated that: “ The Consent Decree dated 14/07/2011 is a nullity as it was obtained
through a fraud on that Court and on the Defendant mother by the Plaintiff through
suppression of a vital documents, being the Will of Mr. Birendra Thomas, and is thus to be
ignored.” In view of natural justice there must mandatory and necessary to allowed the
amendment application because without the taking the plea of fraud there is injustice to the
petitioner and he was suffer a lot.
2.1] Whether it is necessary to amend the original written statement concerning fraud
on the court.
In the original written statement dated 06/03/2014 is not effective without taking the plea of
consent decree is nullity as it was obtained by fraud and also not define the real controversy
between the parties. In the written statement it is mandatory to denote the proper
defence/averment that is the consent decree is nullity as it was obtained by fraud.
In the case Bharati Das V. Ranjit Kumar Das AIR 2009Gau 23 In that case the land which
was sought to be partition was land which belonged to the predecessors in interest of the
parties. Information regarding execution of a registered will in favour of the husband of the
defendant come to the notice of plaintiffs only after the defendants filed their written
statement . The plaintiff wanted to include this subsequent development in the plaint by
amending it because the mere challenge to the will for getting it declared as void would not
have changed the nature and character of partition suit. They could said that the amendment
was to be allowed developments subsequent to the filing of the suit can be raised for
including in the plaint.
Petitioner also here pray that only take the defence of nullity of consent decree in view of will
and it was fraudulent and there is not any changing that nature of facts but disclose the real
controversy between the parties.
Consent decree nullity when it is obtained by fraud
As per the Respondent council oral submission in interim injunction and forcebally submitted
that in the view of Order 23 Rule 3A of the CPC 1908 it was impermissible to directly or
 MEMORANDUM FOR PETITIONER

indirectly question the lawfulness of consent decree that had been arrived at a compromise
between parties to legal proceeding. It totally denied by the petitioner because the consent
decree was nullity when it was obtained by fraud.
In the case of Charka Lohar v. Jitya Lohar and ors. 2006(4) JCR 351 (jhr) petitioner pray for
quashing the order passed learned court because compromise decree was passed in the
partition suit is fraudulently and plaintiff want to amend the plaint. In the view of justice
court allowed the amendment application and held that amendment necessary for avoid the
multiplicity of the legal proceedings.
In another case A.A.Gopalakrishna V. Cochin Devaswom Board 2008 (1) Mh.L.J (S.C.) 743
this case filed against the compromise decree taken by fraud/ Collusion on the part of the
officers of a statutory board held that compromise decree cannot be sustained and is liable to
be set aside.
In another case Shanti Budhiya Vesta Patel V. Nirmala Jayprakash Tiwari 2010 (5) Mh.L.J
(S.C) 67 . Consent decree order to make out a case of fraud or coercion there must be a) an
express allegation of coercion or fraud and b) all the material facts in support of such
allegations be laid out in full and with a high degree of precision. If the coercion or fraud is
alleged, it must be set out with full particulars.
Petitioner here submits that petitioner mother was not aware about the existence of will at the
time of partition suit dated 14/07/2011 therefore petitioner mother was agree to the consent
decree. On November 2012, by the Mr. Rajendra Thomas daughter to know about the
existence of will regarding to suit property. The real fact is that at the time of partition suit
the original copy of will is in custody of respondent and he was suppress the vital documents
i.e will from court and petitioner mother.
In the case ILR (1972) 2 Delhi 964 stated that the word fraud in section 44 of Indian
Evidence Act 1872 means there in that the party against whom the decree is obtained is
deliberately kept out of knowledge of the suit or by some means disabled from dining the
same.
In the case Mashyak Grihnirman Sahakari Sanstha Maryadit V. Usman Habib dhuka and
others decided that the appeal in supreme court against order of trial court and High Court.
The High Court has not considered these undisputed facts and passed the impugned order on
the general principles of amendment as contained in Order VI Rule 17 of CPC. Hence we do
not finding any grounds for allowing the amendment sought for by the plaintiffs which was
not only a belated one but was clean an afterthought for the obvious purpose to avert the
inevitable consequence. The High Court has committed serious error of law in setting aside
the order passed by the trial court whereby the amendment sought for was dismissed. The
impugned order of the High Court cannot be sustained in law. Held that appeal is allowed
impugned order of High Court is set aside and Trial Court order is resored.
Hence it is totally clear that the strategy of Respondent to acquire the suit property without
disclosing the vital document with know to him existence of will related to suit property. As
per the Respondent strategy the consent decree is nullity in view of will. Petitioner submits
that there must be necessary to determine the case of fraud and consent decree is nullity in
view of will.
 MEMORANDUM FOR PETITIONER

2.2] Whether amendment under Order 6 Rule 17 is mandatory and it is necessary for
the purpose of determine the real controversy between the parties.
Petitioner submits that the amendment in the written statement under order 6 rule 17 is
mandatory and necessary for the purpose of determine the real controversy between the
parties. Without taking the defence and averment regarding to consent decree is nullity
because it was obtained by fraud it is difficult to proof the real question of controversy
between the parties. There is test of due diligence was satisfied, it is not the petitioner fault
but it was error and deficiency made by the previous council and after the opinion of new
advocate the plea of fraud made by the respondent come in front of the court as well as the
new advocate pointed out that the consent decree is contrary to law in view of will and it is
nullity when it was obtained by fraud without taking this defence the petitioner was suffer a
loss and injustice against him therefore it is necessary to amend the written statement in view
of natural justice and it is mandatory of define the real question of controversy between the
parties.
Test of Proviso under Order 6 Rule 17 of CPC determine the real controversy between
parties
Under the Civil Procedure Code 1908 Order 6 Rule 17 divided into 2 parts-

1) The court may at any stage of the proceeding 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 determining the real questions in
controversy between the parties.

2) Provided that no application for amendment shall be allowed after the trial has
commenced, unless the court come to the conclusion that in spite of due diligence, the matter
before the commencement of trial.
In the matter of Rajesh Kumar Aggarwal & Others V. K.K.Modi & others 2006 4 SCC 385
it was held that Order 6 Rule 17 consists of two parts whereas the first party of the provision
is discretionary (that is may) and leaves it to the court to order amendment of pleading. The
second part is imperative (that is shall) and enjoins the court to allow all amendments which
are necessary for the purpose of determine the real controversy between the parties.
In the original written statement dated 06/03/2014 it was not properly define the real
controversy between the parties therefore petitioner was filed the amendment application
dated 09/03/2016 and give the proper defence/averment for his justice. The real fact for
defining the real question of controversy between the parties is necessary for amend the
written statement. In another case Usha Devi V. Rijwan Ahmad 2008 (1) SCCR p.413 appeal
in supreme court against order passed by the High Court and order/judgement of trial court is
to dismissed and rejected application under order VI rule 17 of CPC. Respondent file appeal
in Supreme Court held that appellant ought to have been diligent in promptly seeking
amendment in plaint at early stage of suit more so when error pointed by defendant. Proposed
amendment was necessary for purpose of bringing to force real question in controversyand
amendment allowed. In the case Dhanaji Kashinath Shendkar V. Khemchand S. Chawla in
 MEMORANDUM FOR PETITIONER

this case held that the amendment which is necessitated and is essential on account of
subsequent events must be allowed. All the controversies between the parties to the suit in
respect of premises involved in the suit must be allowed to be adjudicated upon and for that
purpose the amendment, if necessary has to be allowed. In another case Pirgonda Hangomda
Patil V. Kalgonda Shidgonda Patil it was held that all amendment ought to be allowed
which satisfy the two condition a) of not working injustice to the other side and b) of being
necessary for the purpose of determine the real questions in controversy between the parties.
The proper defence and averment was taken by the Petitioner it is a right vested to him under
the order VI Rule 17 of CPC and the petitioner was entitled to amend his Written Statement
and taking proper defence for his justice. Therefore there is necessary and as well as
mandatory on court to allow the amendment application in view of principle of natural justice
discuss the real controversy between the parties.