J. SAMUEL AND OTHERSversusGATTU MAHESH AND OTHERS

                   [2012] 1 S.C.R. 295


                J. SAMUEL AND OTHERS                          A
                             v.
             GATTU MAHESH AND OTHERS
              (Civil Appeal No. 561 of 2012)
                    JANUARY 16, 2012
                                                               B
    [P. SATHASIVAM AND J. CHELAMESWAR, JJ.]

    Code of Civil Procedure, 1908:

      Or. VI r. 17 - Amendment of pleadings - Suit for specific c
performance of contract - Application filed under Or. VI r. 17
seeking amendment of the plaint to incorporate specific
pleading in compliance of s. 16(c) of the Specific Relief Act
and Form 47, Appendix 'A' CPC on the ground that the same
was missed due to typographical error - Application filed by
                                                                0
respondents for amendment of plaint after conclusion of the
trial and after the matter was reserved for orders of the trial
court - Trial court dismissed the application whereas the High
Court allowed the respondents to amend the plaint as prayed
for - On appeal, held: Proviso inserted in r. 17 clearly states
that no amendment shall be allowed after the trial has E
commenced except when the court comes to the conclusion
that inspite of due diligence, the party could not have raised
the matter before the commencement of the trial - Act of
neglecting to perform an action which one has an obligation
to do cannot be called as a typographical error - On facts, F
there is a clear lack of 'due diligence' and the mistake
committed does not come within the preview of a
typographical error - Had the person who prepared the plaint,
signed and verified the plaint showed some attention, the
omission could have been noticed and rectified there itself - G
In such circumstances, it cannot be construed that due
diligence was adhered to and in any event, omission of
mandatory requirement running into 3 to 4 sentences cannot

                             295                               H
    296     SUPREME COURT REPORTS                 [2012] 1 S.C.R.


A be a typographical error - Thus, the order passed by the High
  Court is set aside.

        Or. VI r. 17 - Amendment of pleadings - Court's discretion
  to grant permission for - Held: Lies on two conditions that no
8 injustice must be done to the other side and the amendment
  must be necessary for the purpose of determining the real
  question in controversy between the parties - However, to
  balance the interests of the parties in pursuit of doing justice,
  the proviso has been added which clearly states that no
C 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.

       Term 'due diligence' - Meaning and usage of .. Held: Due
D diligence is the idea that reasonable investigation is
  necessary before certain kinds of relief are requested - ft is
  specifically used in the Code to provide a test for determining
  whether to exercise the discretion in situations of requested
  amendment after the commencement of trial - The term
E determines the scope of a party's constructive knowledge,
  claim and is very critical to the outcome of the suit - Party
  requesting a relief stemming out of a claim is required to
  exercise due diligence and is a requirement which cannot be
  dispensed with .                                        ·
F      Term 'typographical error' - Meaning of - Held: Is defined
  as a mistake made in the printed/typed material during a
  printing/typing process - Term includes errors due to
  mechanical failure or slips of the hand or finger, but usually
  excludes errors of ignorance - Act of neglecting to perform an
G action which one has an obligation to do cannot be called as
  a typographical error.

       Specific Relief Act, 1963 - s. 16(c) - Personal bars to
  relief - Enforcement of specific performance of contract -
H Essential ingredient of s. 16(c) - Held: Specific averments
J. SAMUEL AND ORS v. GATIU MAHESH AND ORS. 297

should be made in the plaint that he has performed and has      A
always been willing to perform the essential terms of the Act
which have to be performed by him - In the absence thereof,
the decree for specific performance cannot be granted.

     Respondents filed a suit for specific performance of       B
the contract for sale. The trial of the suit commenced, the
parties adduced evidence, their arguments were heard
and completed and the matter was posted for judgment.
Subsequently, the respondents filed an application under
Order VI, Rule 17 CPC seeking amendment of the plaint
to incorporate specific pleading in compliance of Section       C
16(c) of the Specific Relief Act and Form 47, Appendix 'A'
on the ground that the same was missed due to
typographical error. The Additional District Judge
dismissed the application for amendment. Aggrieved, the
respondents filed a revision petition. The High Court           D
allowed the amendment sought for by the respondents.
Therefore, the appellants filed the instant appeal.

    Allowing the appeal, the Court
                                                                E
      HELD: 1.1. In the instant case, suit after prolonged
trial came to an end in September, 2010. The application
for amendment under Order VI Rule 17 CPC was filed on
24.09.2010 that is after the arguments were concluded on
22.09.2010 and the matter was posted for judgment on
04.10.2010. Section 16(c) of the Specific Relief Act            F
contemplates that specific averments have to be made in
the plaint that he has performed and has always been
willing to perform the essential terms of the Act which
have to be performed by him. This is an essential
ingredient of Section 16(c) and the form prescribes for the     G
due performance. In other words, in the absence of the
said claim that he is always ready and willing to perform
his part of the contract, the decree for specific
performance cannot be granted by the court. The proviso
inserted in Order VI Rule 17 clearly states that no             H
    298    SUPREME COURT REPORTS               [2012] 1 SC R


A   amendment shall be allowed after the trial has
    commenced except when the court comes to the
    conclusion that in spite of due diligence, the party could
    not have raised the matter before the commencement of
    the trial, such application for amendment may be allowed.
B   [Para 1O] [307-C-F]

       1.2. On proper interpretation of proviso to Rule 17 of
  Order VI, the party has to satisfy the court that he could
  not have discovered that ground which was pleaded by
  amendment, in spite of due diligence. No doubt, Rule 17
C confers power on the court to amend the pleadings at
  any stage of the proceedings. However, proviso restricts
  that power once the trial has commenced. Unless the
  court satisfies that there is a reasonable cause for
  allowing the amendment normally the court has to reject
D such request. An argument was advanced that since in
  the legal notice sent before filing of the suit, there is
  reference to readiness and willingness and the plaintiff
  also led in evidence, nothing precluded the court from
  entertaining the said application with which it cannot be
E accepted in the light of Section 16(c) of the Specific Relief
  Act as well as proviso to Order VI Rule 17. The only
  reason stated so in the form of an affidavit is omission
  by "type mistake". Admittedly, it is not an omission to
  mention a word or an arithmetical number. The omission
F is with reference to specific plea which is mandated in
  terms of Section 16(c) of the Specific Relief Act. [Para 11]
  [307-H; 308-A-D]
       1.3. The primary aim of the court is to try the case on
G its merits and ensure that the rule of justice prevails. For
  this the need is for the true facts of the case to be placed
  before the court so that the court has access to all the
  relevant information in coming to its decision. Therefore,
  at times it is required to permit parties to amend their
  plaints. The court's discretion to grant permission for a
H
J. SAMUEL AND ORS v. GATTU MAHESH AND ORS. 299

party to amend his pleading lies on two conditions, firstly, A
no injustice must be done to the other side and secondly,
the amendment must be necessary for the purpose of
determining the real question in controversy between the
parties. However, to balance the interests of the i:arties
in pursuit of doing justice, the proviso has been added B
which clearly states 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. [Para 12] [308-E-G]        C

     1.4. 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 D
someone must engage in due diligence to determine that
the representations made are factually accurate and
sufficient. Tile 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 E
amendment after the commencement of trial. A party
requesting a .relief stemming out of a claim is required to
exercise due diligence and is a requirement which cannot
be dispensed with. The term "due diligence" determines
the scope of a party's constructive knowledge, claim and F
is very critical to the outcome of the suit. [Paras 13, 14]
[308-H; 309-A-C]
     1.5. 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. The term G
typographical error is defined as a mistake made in the
printed/typed material during a printing/typing process.
The term includes errors due to mechanical failure or slips
of the hand or finger, but usually excludes errors of
ignorance. Therefore, the act of neglecting to perform an H
    300     SUPREME COURT REPORTS              [2012] 1 S.C.R.


A action which one has an obligation to do cannot be
  called as a typographical error. As a consequence the
  plea of typographical error cannot be entertained in this
  regard since the situation is of lack of due diligence
  wherein such amendment is impliedly barred under the
B Code. [Para 15) [309-D-F]

         1.6. The claim of typographical error/mistake is
    baseless and cannot be accepted. In fact, had the person
    who prepared the plaint, signed and verified the plaint
    showed some attention, this omission could have been
C   noticed and rectified there itself. In such circumstances,
    it cannot be construed that due diligence was adhered
    to and in any event, omission of mandatory requirement
    running into 3 to 4 sentences cannot be a typographical
    error as claimed by the plaintiffs. All these aspects were
D   rightly considered and concluded by the trial court and
    the High Court committed an error in accepting the
    explanation that it was a typographical error to mention
    and it was an accidental slip. The power was upheld in
    the deserving cases that the Court can allow delayed
E   amendment by compensating the other side by awarding
    costs. The entire object of the amendment to Order VI
    Rule 17 as introduced in 2002 is to stall filing of
    application for amending a pleading subsequent to the
    commencement of trial, to avoid surprises and that the
F   parties had sufficient knowledge of other's case. It also
    helps checking the delays in filing the applications. [Para
    16] [309-G-H; 310-A·C]
      1.7. The conclusion arrived by the trial court is
  accepted and not of the High Court. The order passed in
G the re'lision petition' is set aside. [Para 17] [310-F]

        Anig/ase Yohannan vs. Ramlatha and Ors. (2005) 7 SCC
    534: 2005 (3) Suppl. SCR 440; Ajendraprasadji N. Pandey
    and Anr. vs. Swami Keshavprakeshdasji N. and Ors. Chander
H
J. SAMUEL AND ORS v. GATTU MAHESH AND ORS. 301


Kanta Bansal vs. Rajinder Singh Anand (2008) 5 SCC 117:              A
2008 (4) SCR 748; Rajkumar Guraward (dead) through LRS.
vs. S.K.Sarwagi andCompany Private Limited and Anr. (2008)
14 SCC 364: 2008 (8) SCR 700; Vidyabai and Ors. vs.
Padmalatha and Anr. (2009) 2 SCC 409: 2008 (17) SCR 505;
Man Kaur (dead) By LRS vs. Hartar Singh Sangha (2010) 10             B
SCC 512: 2010 (12) SCR 515 - relied on.
                      Case Law Reference:
    2005 (3) Suppl. SCR 440 Relied on.                Para 16
    2008 (4) SCR 748               Relied on.         Para 16        c
    2008 (8) SCR 700               Relied on.         Para 16
    2008 (17) SCR 505              Relied on.         Para 16
    2010 (12) SCR 515              Relied on.         Para 16        D
     CIVIL APP ELLATE JURISDICTION : Civil Appeal No. 561
of 2012.

    From the Judgment & Order dated 8.2.2011 of the High
Court of Andhra Pradesh at Hyderabad in Civil Revision Petition      E
No. 5162 of 2010.

    A. Subba Rao for the Appellants.

    K. Swami, Prabha Swami, P.V. Yogeswaran for the                  F
Respondents.

    The Judgment of the Court was delivered by

    P. SATHASIVAM, J. 1. Leave granted.
                                                                     G
    2. This appeal is filed ag<;1inst the final judgment and order
dated 08.02.2011 passed by the High Court of Andhra Pradesh
at Hyderabad in Civil Revision Petition No. 5162 of 2010
whereby the High Court while setting aside the order dated
                                                                     H
    302      SUPREME COURT REPORTS                [2012] 1 S.C.R.

A 20.10.2010 passed by the II Additional District Judge,
  Karimnagar at Jagtial, allowed the revision petition filed by the
  respondents herein.

          3. Brief Facts:
B      a) The Diocese at Karimnagar was incorporated on
  12.03.1978 from its parent Diocese of Dornakal. On
  22.08.1985, the Retired Diocesan Treasurer and Property
  Secretary, Karimnagar, issued a publication in the paper to
  auction the land bearing Survey No. 43, admeasuring Ac. 3.31
C gts. situated at Mission Compound, Dharmapuri Road, Jagtial
  and the last date to receive the tenders was fixed as
  05.09.1985. On 13.09.1985, the sealed tenders were opened
  and Gattu Mahesh-Respondent No. 1 herein and Katha Mohan-
  Respondent No. 2 herein, Managing Partners in M/s Jagath
D Swapna & Co. put tenders for an amount of Rs. 24,55,569/-
  along with a DD for an amount of Rs.2,45,556/-which is 10%
  of the EMO. They being the highest bidders. their tenders were
  accepted.

E      b) The contract for sale of property was entered into
  between the Respondent Nos. 1 and 2 herein with Karimnagar
  Diocese on 27.09.1985. It was mentioned in the contract that
  Karimnagar Diocese agreed to receive Rs. 2,50,000/- on or
  before 08.11.1985 because the land under sale was under
F dispute and the balance amount was to the paid by the
  respondents herein only after getting final dropping of the land
  acquisition proposal by the Municipality, Jagtial and sanction
  of layout by the Municipality, Jagtial. On 03.04.2003,
  Respondent Nos. 1 and 2 herein issued a legal notice to
G Karimnagar Diocese informing that the land acquisition
  proceedings were dropped on 05.05.1986 and the sanction of
  layout by the Municipality, Jagtial was completed on 28.12.1989
  and to execute and register the sale deed in their favour as per
  the agreement dated 27.09.1985.
H
   J. SAMUEL AND ORS v. GATIU MAHESH AND                       303
            ORS. [P. SATHASIVAM, J.]

     c) In the absence of adequate response from Karimnagar            A
Diocese, Respondent Nos. 1 and 2 filed O.S. No. 9 of 2004 in
the Court of II Additional District Judge, Karimnagar at Jagtial
for specific performance of the contract of sale and for
perpetual injunction. During the pendency of the suit,
Karimnagar Diocese filed written statement pointing out the            B
inherent defects, namely, absence of mandatory requirements
of Section 16(c) of Specific Relief Act and Form 47, Appendix
'A' of the Code of Civil Procedure, 1908. On 24.09.2010,
 respondent Nos. 1 and 2 herein filed I.A. No. 1078 of 2010 in
O.S. No. 9 of 2004 under Order VI, Rule 17 of the Code seeking         C
amendment of the plaint to incorporate specific pleading in
 compliance of the above section of the Specific Relief Act and
the Code on the ground that the same was missed due to
typographical error. On 04.10.2010, Karimnagar Diocese filed
 counter affidavit resisting the application.                          D

    d) By order dated 20.10.2010, the II Additional District
Judge dismissed the application for amendment filed by the
Respondent Nos. 1 and 2 herein. Aggrieved by the order, the
Respondents herein approached the High Court by filing Civil           E.
Revision Petition being No. 5162 of 2010. The High Court, by
impugned order dated 08.02.2011, allowed the amendment
sought f9r by the Respondent Nos. 1 and 2 herein.

     e) Aggrieved by the said decision, the respondents have
preferred this appeal by way of special leave petition before          F
this Court.

    4. Heard Mr. A. Subba Rao, learned counsel for the
appellants and Mr. K. Swami, learned counsel for the
respondents.                                                           G

 . 5. The only point for consideration in this appeal is whether
the High Court is right in allowing the application filed under
Order VI Rule 17 CPC for amendment of the plaint which was
filed after conclusion of trial and reserving the matter for orders.   H
    304      SUPREME COURT REPORTS                   [2012] 1 S.C.R.


A       6. Based on the agreement dated 27.07.1985 which
  relates to sale of 3 acres and 31 gunthas of land in Survey No.
  43 situate in Mission Compound, Dharmapuri Road at Jagtial
  for a consideration of Rs.24,55,569/-, the respondents/plaintiffs
  filed the said suit for specific performance. Since we have
B already mentioned factual details, there is no need to refer the
  same excepting the details relating to the petition filed under
  Order VI Rule 17. After filing written statement by the contesting
  defendants, the trial of the suit commenced and admittedly both
  parties adduced the evidence on their behalf and arguments
c on behalf of both the sides were heard and completed on
  22.09.2010. On that day, the Court reserved the matter for
  orders. Meanwhile, on 24.09.2010, the respondents herein filed
  a petition praying for amendment of the plaint. In support of the
  said application, plaintiff No.2 has filed an affidavit stating that
o in para 11of the plaint he has stated about the legal notice
  issued on 03.04.2003 to defendant Nos. 1 to 7 for specific
  performance of agreement of sale dated 27.09.1985 and there
  was no reply for it. In para 3 of the affidavit, the deponent has
  stated that by type mistake, the following sentences have
E missed. After para 11 of the plaint, the following para 12 may
  be added. We are and has been and still is ready and willing
  specifically to perform the agreement of sale dated
  27.09.1985 on our part of which the defendants have, had
  noticed. I am ready with the balance amount as per agreement
F of sale dated 27.09.1985. I submit the para nos. 12-18 of the
  plaint may be changed as 13 to 19." The only reason given by
  the plaintiffs praying for amendment and inclusion of the above
  averment in the plaint is ''type mistake". It is also stated that it
  happened in spite of their due diligence.
G       7. The above claim was resisted by the appellants herein
  by filing detailed counter affidavit. Apart from disputing the
  merits of the claim of the plaintiffs, with regard to the petition
  U..der Order VI Rule 17 they specifically stated that after
H passing several stages in the protracted trial, the final
   J. SAMUEL AND ORS v. GATIU MAHESH AND                   305
            ORS. [P. SATHASIVAM, J.]
arguments of the plaintiff in the suit were heard on 20.09.2010. A·
The defendants have also filed their written arguments on
22.09.201 O wherein the inherent defect of plaintiff i.e. absence
of averments of mandatory requirements of Section 16(c)
Explanation (ii) and Form 47 Appendix A of CPC was pointed
out. Even after this, further argument was made by both the B
parties and the counsel for the plaintiff informed the court that
no further time is required and the matter may be posted for
judgment. In view of the same, the learned trial Judge posted
 the matter to 04.10.2010 for judgment. Only at this juncture i.e.
 on 24.09.2010, plaintiffs came up with the present petition c
 seeking amendment to incorporate specific pleading in
 compliance with Section 16 (c) of the Specific Relief Act and
 Form 47 of Appendix A CPC on the ground that the same was
 missed due to "type mistake" in spite of due diligence. Though
 the said claim was not acceptable by the trial Court, the High o
 Court allowed the plaintiff to amend the plaint as prayed for.
    8. Before considering the acceptability or otherwise of the
reasoning of the High Court, it is useful to refer Order VI Rule
17 CPC.
                                                                   E
     "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        F
     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   G
     party could not have raised the matter before the
     commencement of trial."
    The said provision was omitted by the Civil Procedure
Code (Amendment) Act, 1999. Section 16 of the Amendment            H
Act ~ead.s as und_er:
      306         SUPREME COURT REPORTS                [2012] 1 S.C.R.

· A         "16. Amendment of Order 6 - In the First Schedule, in
            Order 6,-
            •••
            (iii) Rules 17 and 18 shall be omitted."
 B
      After stiff resistance by the litigants and the members of the bar,
      again Order VI Rule 17 was re-introduced with proviso
      appended therein. As per the said proviso, no application for
      amendment shall be allowed after the trial has commenced.
 c    However, there is an exception to the said rule, i.e., if the court
      comes to the conclusion that in spite of due diligence, the party
      could not have raised the matter before the commencement of ,.
      the trial, such application for amendment may be allowed.           1

       9. Before proceeding further, it is also useful to refer
 D Section 16(c) of Specific Relief Act which reads as under:

            "16. Personal bars to relief.- Specific performance of a ·
            contract cannot be enforced in favour of a person-

 E          (a) xxx
            (b) xxx

            (c) who fails to aver and prove that he has performed or
            has always been ready and willing to perform the essential
 F          terms of the contract which are to be performed by him,
            other than terms the performance of which has been
            prevented or waived by the defendant.
            Explanation.- For the purposes of clause (c),-
 G
            (i) where a contract involves the payment of money, it is
            not essential for the plaintiff to actually tender to the
            defendant or to deposit in Court any money except when
            so directed by the Court;
 H          (ii) the plaintiff must aver performance of, or readiness and
    J. SAMUEL AND ORS v. GATIU MAHESH AND                      307
             ORS. [P. SATHASIVAM, J.]
      willingness to perform, the contract according to its true      A
      construction."

 It is clear that in a suit for specific performance of a contract,
 unless there is a specific averment that he has performed or
 has always been ready and willing to perform the essential terms     B
 of the contract, the suit filed by him is liable to be dismissed.
 In other words, in the absence of the above said claim that he
 is always ready and willing to perform his part of the contract,
 the decree for specific performance cannot be granted by the
 Court.
                                                                      c
       10. In this legal background, we have to once again                ~
  recapitulate the factual details. In the case on hand, Suit O.S.
  No. 9 of 2004 after prolonged trial came to an end in
  September, 2010. The application for amendment under Order
  VI Rule 17 CPC was filed on 24.09.2010 that is after the            D
  arguments were concluded on 22.09.2010 and the matter was
. posted for judgment on 04.10.2010. We have already
._mentioned that Section 16(c) of the Specific Relief Act
  contemplates that specific averments have to be made in the
  plaint that he has performed and has always been willing to         E
  perform the essential terms of the Act which have to be
  performed by him. This is an essential ingredient of Section
  16(c) and the form prescribes for the due performance. The
  proviso inserted in Rule 17 clearly states that no amendment
  shall be allowed after the trial has commenced except when the      F
  court comes to the conclusion that in spite of due diligence, the
  party could not have raised the matter before the
  commencement of the trial.

     11. As stated earlier, in the present case, the amendment        G
 application itself was filed only on 24.09.2010 after the
 arguments were completed and the matter was posted for
 judgment on 04.10.2010. On proper interpretation of proviso
 to Rule 17 of Order VI, the party has to satisfy the Court that
 he could not have discovered that ground which was pleaded           H
    308      SUPREME COURT REPORTS                  [2012] 1 S.C.R.


A by amendment, in spite of due diligence. No doubt, Rule 17
  confers power on the court to amend the pleadings at any stage
  of the proceedings. However, proviso restricts that power once
  the trial has commenced. Unless the Court satisfies that there
  is a reasonable cause for allowing the amendment normally the
B court has to reject such request. An argument was advanced
  that since in the legal notice sent before filing of the suit, there
  is reference to readiness and willingness and the plaintiff has
  also led in evidence, nothing precluded the court from
  entertaining the said application with which we are unable to
c accept in the light of Section 16(c) of the Specific Relief Act
  as well as proviso to Order VI Rule 17. The only reason stated
  so in the form of an affidavit is omission by "type mistake".
  Admittedly, it is not an omission to mention a word or an
  arithmetical number. The omission is with reference to specific
o plea which is mandated in terms of Section 16(c) of the Specific
  Relief Act.

       12. The primary aim of the court is to try the case on its
  merits and ensure that the rule of justice prevails. For this the
  need is for the true facts of the case to be placed before the
E court so that the court has access to all the relevant information
  in coming to its decision. Therefore, at times it is required to
  permit parties to amend their plaints. The Court's discretion to
  grant permission for a party to amend his pleading lies on two
F conditions, firstly, no injustice must be done to the other side
  and secondly, the amendment must be necessary for the
  purpose of determining the real question in controversy
  between the parties. However to balance the interests of the
  parties in pursuit of doing justice, the proviso has been added
  which clearly states that: no application for amendment shall be
G 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.

       13. Due diligence is the idea that reasonable investigation
H is necessary before certain kinds of relief are requested. Duly
                                                              . ' "".


  J. SAMUEL AND ORS v GATTU MAHESH AND                        309
           ORS. [P. SATHASIVAM, J.]
diligent efforts are a requirement for a party seeking to use the A
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 B
whether to exercise the discretion in situations of requested
amendment after the commencement of trial.

      14. A party requesting a relief stemming out of a claim is
required to exercise due diligence and is a requirement which           c
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.

     15. In the given facts, there is a clear lack of 'due diligence' D .
and the mistake committed certainly does not come within the
preview of a typographical error. The term typographical error
is defined as a mistake made in the printed/typed material
during a printing/typing process. The term includes errors due
to mechanical failure or slips of the hand or finger, but usually E
excludes errors of ignorance. Therefore the act of neglecting
to perform an action which one has an obligation to do cannot
be called as a typographical error. As a consequence the plea
of typographical error cannot be entertained in this regard
since the situation is of lack of due diligence wherein such
amendment is impliedly barred under the Code.                         F

     16. The claim of typographical error/mistake is baseless
and cannot be accepted. In fact, had the person who prepared
the plaint, signed and verified the plaint showed some attention,
this omission could have been noticed and rectified there itself. G
In such circumstances, it cannot be construed that due
diligence was adhered to and in any event, omission of
mandatory requirement running into 3 to 4 sentences cannot
be a typographical error as claimed by the plaintiffs. All these
aspects have been rightly considered and concluded by the trial H
     310       SUPREME COURT REPORTS                  [2012] 1 S.C.R.

· A court and the High Court has committed an error in accepting
     the explanation that it was a typographical error to mention and
     it was an accidental slip. Though the counsel for the c.ppellants
     have cited many decisions, on perusal, we are of the view that
     some of those cases have been decided prior to the insertion
  B of Order VI Rule 17 with proviso or on the peculiar facts of that
     case. This Court in various decisions upheld the power that in
     deserving cases, the Court can allow delayed amendment by
     compensating the other side by awarding costs. The entire
     object of the amendment to Order VI Rule 17 as introduced in
  C 2002 is to stall filing of application for amending a pleading
     subsequent to the commencement of trial, to avoid surprises
     and that the parties had sufficient knowledge of other's case .•
     It also helps checking the delays in filing the applications. [vide ~
    .Aniglase Yohannan vs. Ramlatha and Others, (2005) 7 SCC
  D 534, Ajendraprasadji N. Pandey and Another vs. Swami
     Keshavprakeshdasji N. and Others, Chander Kanta Bansal
     vs. Rajinder Singh Anand, (2008) 5 SCC 117, Rajkumar
     Guraward (dead) through LRS. vs. S.K.Sarwagi and Company
     Private Limited and Another, (2008) 14 SCC 364, Vidyabai
  E and Others vs. Padma/atha and Another, (2009) 2 SCC 409,
     Man Kaur (dead) By LRS vs. Hartar Singh Sangha, (2010)
     10 sec 512.

        17. In the light of the above discussion, we are in entire
 F agreement with the conclusion arrived by the Trial Court and
   unable to accept the reasoning of the High Court. Accordingly,
   the order dated 08.02.2011 passed in Civil Revision Petition
   No. 5162 is set aside.
            18. The civil appeal is allowed with no order as to costs.
 G
     N.J.                                             Appeal allowed.