Team 05 - Petitioner

CMR VI NATIONAL MOOT COURT COMPETITION, 2018.
TEAM CODE: 05
IN THE HONORABLE SUPREME COURT OF INDIA
THE PETITION FILED UNDER ARTICLE 136(1) OF THE CONSTITUTION OF

INDIA
IN SPECIAL LEAVE PETITION NO.: OF 2018
LISA KAMATH……………………………………………………..PETITIONER
VERSUS
RAJENDRA THOMAS………….…………………………………RESPONDENT
CMR VI NATIONAL MOOT COURT COMPETITION, 2018
WRITTEN SUBMISSION ON BEHLAF OF THE PETITIONER
MOST RESPECTFULLY SUBMITTED
COUNSEL FOR THE PETITIONER
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TABLE OF CONTENTS
INDEX OF AUTHORITIES ………………………………………………………………. 3
STATEMENT OF JURISDICTION …………………………………………..………….. 9
STATEMENT OF FACTS ……………………………………………………………….. 10
ISSUES RAISED……………………………………………………………………...…… 11
SUMMARY OF PLEADINGS …………………………………………………………… 12
PLEADINGS………………………………………………………..……………………… 13
1. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE UNDER

ARTICLE 126 OF THE CONSTITUTION OF INDIA?
2. WHETHER AN AMENDMENT TO A WRITTEN STATEMENT CAN BE MADE, IN
LIGHT OF A NEW LEGAL OPINION, DEPSITE DUE DILIGENCE UNDER THE
PROVISO TO ORDER VI RULE 17 OF THE CPC 1908?
3. 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 THE RULE WHICH IS THE MANDATORY PART OF THE PROVISO?
4. WHETHER SECTION 4(1) OF THE CPC PREVENTS A PARTY FROM FILING A
CASE UNDER SECTION 44 OF THE IEA AND IF THERE WERE FRADULENT
ACTIONS COMMITTED?
PRAYER………………………………………………………………………………...…. 29
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INDEX OF AUTHORITIES
1. STATUTES REFERRED
SR.NO. STATUTES REFERRED CITED ON PAGE NO.
1. THE CODE OF CIVIL PROCEDURE PASSIM

(AMENDMENT) ACT, 1999.
2. THE CODE OF CIVIL PROCEDURE PASSIM
(AMENMENT) ACT, 2002.
3. THE CODE OF CIVIL PROCEDURE, 1908. PASSIM
4. THE CONSTITUTION OF INDIA, 1950. PASSIM
5. THE INDIAN CONTRACT ACT, 1872. PASSIM
6. THE INDIAN EVIDENCE ACT, 1872. PASSIM
7. THE INDIAN SUCCESSION ACT, 1925. PASSIM
2. TABLE OF CASES
SR. NO. NAME OF THE CASES AND ITS RELEVANT PAGE NUMBER
CITATIONS
(REPORTED JUDGMENTS)
1. Abdul Alim v. Mohd Saeed, 25
AIR 1951 SC 661
2. Abdul Rehman v. Mohd. Ruldu, 19

(2012) 11 SCC 341.
3. Ajendraprasadji N. Pandey v. Swami 17
Keshavprakeshdasji N,
(2006) 12 SCC 1.
4. Andhra Bank v. ABN Amro Bank N.V., 19, 20
(2007) 6 SCC 167.
5. Arunachalam v. Sethuratnam, 15
AIR 1979 SC 1284.
6. Asharfi Lal vs Smt. Koili, 27
AIR 1995 SC 1440
7. B.C.P v. Employees, 13
AIR 1956 SC 633.
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8. Baldev Singh and Ors v. Manohar Singh and Ors, 16, 20

(2006) 6 SCC 498.
9. Banwari Lal v.Chando Devi, 23
AIR 1993 SC 1139 (1143).
10. Bharat Bank v. Employees of Bharat Bank, 14
1950 SCR 459.
11. Bishunath Tewari And Ors. vs Mst. Mirchi, 26
AIR 1955 Pat 66.
12. Chander Kanta Bansal v. Rajinder Singh Anand, 17
(2008) 5 SCC 117.
13. Chengalvarya Naidu v. Jagannath and Ors, 23
(1994) 1 SCC 1.
14. Debendranath v. Satya Bala Dass, 27
AIR 1950 Cal 217 273.
15. East India Hotels Ltd. Vs Syndicate Bank Ltd. 14
16. Ganesh Trading Co v. Moji Ram, 19
(1978) 2 SCC 91.
17. Hamza Haji v. State of Kerala, 28
(2006) 7 SCC 416.
18. Indira Kaur v. Sheo Lal Kapoor, 15
(1988) 2 SCC 488.
19. J.Samuel & Ors v. Gattu Mahesh & Ors, 17, 20
(2012) 2 SCC 300.
20. Jai Jai Ram Manohar Lal v. National Building 19

Material Supply, Gurgaon ,
(1969) 1 SCC 869.
21. Kailash v. Nanhku, 16
(2005) 4 SCC 480.
22. Manchharam v. Kalidas, 26
19 BOM 821
23. Mrs.Sunita Devendra Deshprabhu v. Sitadevi 28
Deshprabhu
2016 SCC On Line Bom.9296
24. Narpat Singh v. Jaipur Development Authority, 15
AIR 2002 SC 2036.
25. Nistarini Dassi vs Nundo Lall Bose , 25, 26
(1899) ILR 26 Cal 891
26. Orissa Cement v. The State of Orissa, 14
AIR 1991 SC 1676.
27. Pranjpe v. Kanade, 28
ILR (1882) 6 BOM 148.
28. Prem Singh v. Birbal, 24
(2006) 5 SCC 353
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29. Prithi Pal Singh v. Amrik Singh, 20

(2013) 9 SCC 576.
30. Raigarh Jute Mills Ltd. v. Eastern Railway, 14
AIR 1958 SC 525.
31. Rajesh Kumar Aggarwal v. K.K. Modi, (2006) 4 24
SCC 385.
32. Rajib Panda vs Lakhan Sendh Mahapatra & Ors, 27
(1900) ILR 27 Cal 11
33. Rajkumar Gurawara v. S.K. Sarwagi and Co, 18
(2008) 14 SCC 364.
34. Ram Saran Das & Bros v. Commercial Tax 14
Officer,
AIR 1969 SC 1326.
35. Revajeetu Builders & Developers v. 18
Narayanaswamy & Sons,
(2009) 10 SCC 84.
36. Salem Advocate Bar Assn. (II) v. Union of India, 16
(2005) 6 SCC 344.
37. State of Bombay v. Rusy, 13
AIR 1960 SC 391.
38. Tirupati Balaji Developers Pvt. Ltd. v. State of 14

Bihar,
AIR 2004 SC 2351.
39. Zahira Habibullah Sheikh v. State of Gujarat, 14
(2004) 5 SCC 353.
3. TREATISES, BOOKS, REPORTS AND DIGESTS
SR. NO. NAME OF THE TREATISE, BOOK, REPORT AND DIGESTS WITH THE
AUTHOR OR PUBLISHER
1. Bill Maurer, “Cultural Anthropology”, Vol.20, No.4, Nov 2005.
2. Black Law’s Dictionary, 9th Edn., 2000.
3. Himani Singh, “Language of Law – Ambiguities and Interpretation”,
American International Journal of Research in Humanities, Arts and
Social Sciences, Edn. 2013.
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4. M.P Jain, “The Code of Civil Procedure”, 4th Edn., 2016.

5. Oxford Dictionary, 2006.
6. P.M Bakshi, “The Constitution of India”, 12th Edn., 2013.
7. Sir Dinshaw Fardunji Mulla, “The Code of Civil Procedure
Abridged”, 15th Edn., 2012.
8. Sir Dinshaw Fardunji Mulla, “The Code of Civil Procedure”, 18th
Edn., Vol.2, 2011
9. V. Parabrahma Sastri, “The Indian Evidence Act (A Concise
Commentary)”, 2015.
10. Law Commission of India, One Hundred Sixty Third Report: The
Code of Civil Procedure (Amendment Bill), 1997.
11. V.N Shukla, “Constitution of India”, 13th Edn, 2017.
12. Sri S.M. Deka “Notes on the Proviso to Order VI Rule 17 of the Code
of Civil Procedure, 1908", North Eastern Judicial Officers’ Training
Institute.
4. IMPORTANT DEFINITIONS
1. Petitioner for the purpose of this Memorandum shall stand for ‘LISA’
2. Respondent for the purpose of this Memorandum shall stand for ‘RAJENDRA’
5. DYNAMIC LINKS (OFFICIAL WEBSITES APPROVED BY THE APEX COURT OF UNION OF

INDIA)
1. www.manupatra.com
2. www.scconline.com
3. www.judis.nic (Official website of the Supreme Court of India : Unreported
Judgments)
4. www.westlawindia.com
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6. LIST OF ABBREVIATIONS
SR.NO ABBREVIATIONS FULL FORMS
1. & AND
2. ¶ PARAGRAPH
3. § SECTION
4. ARTICLE ART.
5. AIR ALL INDIA REPORTER
6. AWC ALLAHABAD WEEKLY CASES
7. BROS. BROTHERS
8. CPC THE CODE OF CIVIL PROCEDURE, 1908
9. EDN. EDITION
10. HON’BLE HONOURABLE
11. ICA THE INDIAN CONTRACT ACT, 1872
12. ID JUST ABOVE
13. IEA THE INDIAN EVIDENCE ACT, 1872
14. LTD. LIMITED
15. MRS. MISTRESS
16. O. ORDER
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17. ORS. OTHERS
18. P. PAGE NO
19. PVT. PRIVATE
20. R. RULE
21. SC SUPREME COURT
22. SCC SUPREME COURT CASES
23. SCR SUPREME COURT REPORTER
24. SLP SPECIAL LEAVE PETITION
25. SUPRA ABOVE MENTIONED
26. UOI UNION OF INDIA
27. VOL. VOLUME
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STATEMENT OF JURISDICTION
The Petitioner humbly submits before the Hon’ble Supreme Court the Memorandum for the
Petitioner in Special Leave Petition No:.____ of 2018 under Article 136(1) of the
Constitution of India, 1950.
Article 136(1) of the Constitution of India provides that:
“Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.”
The present memorandum sets forth the facts, contentions and arguments in the present case.
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STATEMENT OF FACTS
For the sake of brevity, the facts and circumstances of the present matter are
chronologically enunciated as under:
1. Mr. Rajendra Thomas filed a suit, being special civil suit dated on 16.01.2014 in
Humayunpura in the state of Mahanagara against his niece Ms. Lisa Kamath seeking for an
interim injunction against the suit property.
2. The suit property was allotted to Mr. Rajendra under a Consent Decree dated: 14/07/2011 in
the partition suit filed by him against his sister i.e. Lisa’s mother.
3. In the written statement of Lisa dated 06.03.2014 (reply to the application for interim
injunction) it was recorded that “the Consent Decree is contrary to law in view of a “Will”.”
4. According to the “Will”, the property under the suit has been left by Mr. Birendra Thomas
(original owner of the suit property and the eldest brother) for Lisa’s mother. However the
will was not executed by Mr. Rajendra during the finality of the Consent Decree. Mrs. Lisa
and her mother later discovered about the will when the judgement and order for the Consent
Decree had been passed
5. The trial court granted interim injunction by its judgment and order dated:07/08/2014
6. A new advocate was appointed by Ms. Lisa as the previous advocate was unable to place the
correct defence .According to him the suit property along with another property belonged to
Lisa’s mother as provided in the will.
7. An application dated 09.03.2016 was sort to amend the written statement dated 06.03.2014
her existing defence was “the Consent Decree is a nullity as it is obtained through a fraud on
the court and on Lisa’s mother.”
8. The trial court dismissed the application dated 09.03.2016 by holding that Lisa has failed the
test of ‘due diligence’ under the proviso to Order VI Rule 17 of the CPC.
9. Against the aforesaid judgment and order Ms. Lisa preferred a Writ petition before the High
Court of Mahanagara under Article 227 of the Constitution of India. The High Court agreed
with the trial court on ‘due diligence’ and rejected the petition by final judgment dated
13.12.2017.
10. However the real question in controversy was that the will was obtained fraudulently by Mr.
Rajendra by hiding the will, which places the possession of the suit property along with
another property over to Lisa’s mother.
11. Ms. Lisa has therefore preferred a Special Leave Petition against the above judgment and
order dated 13.12.2017.
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ISSUES RAISED
THE PETITIONER SUBMITS THE FOLLOWING ISSUES FOR CONSIDERATION

IN THE PRESENT CASE.
THESE ISSUES ARE ANALOGOUS TO THE ISSUES FRAMED BY THE

SUPREME COURT OF INDIA.
1. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE UNDER

ARTICLE 126 OF THE CONSTITUTION OF INDIA?
2. WHETHER AN AMENDMENT TO A WRITTEN STATEMENT CAN BE MADE, IN
LIGHT OF A NEW LEGAL OPINION, DEPSITE DUE DILIGENCE UNDER THE
PROVISO TO ORDER VI RULE 17 OF THE CPC 1908?
3. 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 THE RULE WHICH IS THE MANDATORY PART OF THE PROVISO?
4. WHETHER SECTION 4(1) OF THE CPC PREVENTS A PARTY FROM FILING A
CASE UNDER SECTION 44 OF THE IEA AND IF THERE WERE FRADULENT
ACTIONS COMMITTED?
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SUMMARY OF PLEADINGS
1. THE SPECIAL LEAVE PETITION IS MAINTAINABLE UNDER ARTICLE 126

OF THE CONSTITUTION OF INDIA
It is humbly submitted before the Hon’ble Supreme Court that the SLP filed by the Petitioner
is maintainable as the Petitioner has the requisite locus standi to file the SLP and it is liable to
be entertained by this Court.
2. AN AMENDMENT TO A WRITTEN STATEMENT CAN BE MADE, IN LIGHT

OF A NEW LEGAL OPINION, DEPSITE DUE DILIGENCE UNDER THE
PROVISO TO O.VI R.17 OF THE CPC
It is humbly submitted before the Hon’ble Supreme Court that an amendment to a written
statement can be made, in the light of a new legal opinion, despite due diligence under the
proviso to O.VI R.17 of the CPC as it brings out the real questions in controversy between
the parties.
3. THE PROVISO TO ORDER 6 RULE 17 OF THE CPC 1908 DOES NOT APPLIES
TO AN AMENDMENT CONCERNING FRAUD ON THE COURT, UNDER THE
2ND PART OF THE RULE WHICH IS THE MANDATORY PART OF THE
PROVISO
It is humbly submitted before the Hon’ble Supreme Court that a Petitioner should be allowed
to amend a written statement as fraud is an exception to the proviso to O.6 R.17 of the CPC.
4. SECTION 4(1) OF THE CPC PREVENTS A PARTY FROM FILING A CASE

UNDER SECTION 44 OF THE IEA AND THERE WERE FRADULENT
ACTIONS COMMITTED
It is humbly submitted before the Hon’ble Supreme Court that a Petitioner has a right under
Section 4(1) of the CPC and Section 44 of the IEA applies and that fraud has been committed
and the proviso to O.VI R.17 of the CPC does not act as an obstacle.
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ARGUMENTS ADVANCED
1. THE SPECIAL LEAVE PETITION IS MAINTAINABLE UNDER ARTICLE 136 OF

THE CONSTITUTION OF INDIA
1.1. CONCEPT OF SLP

1.1.1. Art.136 does not confer a right of appeal upon a party1 but merely vests discretion to the
Hon’ble Supreme Court to interfere in exceptional cases.2
1.1.2. Art.136(1) of the Constitution states that, “Notwithstanding anything in this Chapter, the
Hon’ble Supreme Court may, in its discretion, grant special leave to appeal from any
judgement, decree, determination, sentence or order in any cause or matter passed or made
by any court or tribunal in the territory of India.”
1.1.3. SLPs in India hold a prime place in the Judiciary of India, and have been provided as
“residual powers” in the hands of the Hon’ble Supreme Court to be exercised only in cases
when any substantial question of law is involved or grave injustice has been done. The
Constitution of India under Art.136 vests the Hon’ble Supreme Court of India with a special
power to grant special leave, to appeal against any judgement or order or decree in any matter
or cause, passed or made by any court/tribunal in the territory of India.
1.1.4. It is a residuary power in the sense that it confers an Appellate Jurisdiction on the Hon’ble
Supreme Court subject to the Special Leave being granted in such matters as may not be
covered by the other articles. It is an overriding provision conferring a special jurisdiction
providing for invoking of the Appellate jurisdiction of the Hon’ble Supreme Court not
fettered by the sweep of the preceding articles.
1.1.5. The exercise of the jurisdiction under Art.136 consists of two steps i.e. granting special leave
to appeal and hearing the appeal.
1.2. THE PETITIONER HAS THE REQUISITE LOCUS STANDI TO FILE THE SPECIAL LEAVE
PETITION IN THE PRESENT CASE
1.2.1. The jurisdiction conferred under Art.136(1) of the Indian Constitution has the following
distinguishing features3,
1
B.C.P v. Employees, AIR 1956 SC 633.
2
State of Bombay v. Rusy, AIR 1960 SC 391.
3
V.N Shukla, “Constitution of India”, 13th Edn.
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a) An appeal shall lie from any order or determination of a court or tribunal. The order
or determination need not be final.
b) The order or determination of a court of tribunal may be in any cause or matter, civil
criminal or otherwise
c) No law making any determination of any court or tribunal final can limit the
jurisdiction of the court in article 1364.
1.2.2. Though the discretionary power vested in the Hon’ble Supreme Court under Art.136 is not
subject to any limitation, the Supreme Court has imposed certain limitations on its own
powers.5 Thus, it has been laid down that this power is to be exercised sparingly and in
exceptional cases only.6 The power given under this article is in the nature of a special
residuary power which is exercisable outside the purview of ordinary law.
1.2.3. Art.136 merely confers a discretionary power to interfere in suitable cases, meant to advance
the cause of justice. Discretion has to be exercised in the larger interests of administration of
justice for preventing manifest injustice being done. The power has to be exercised in
exceptional circumstances for furthering the ends of justice.7 Because the jurisdiction is
discretionary, the form in which the relief is to be granted is at the discretion of the Hon’ble
Supreme Court. It is open to the Court to mould or restrict the relief in a manner most
appropriate to the situation before it in such a way as to advance the interests of justice.8
1.2.4. “Judicial Discretion” means the exercise of judgement by a judge or a court based on what is
fair under the circumstances and guided by the rules and principles of law, a court’ power to
act or not when a litigant is not entitled to demand the act as a matter of right. Mere existence
of alternative remedy is not a bar for granting leave under article 136.9
1.2.5. In Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar10, the Court said that, “…It is an
extraordinary jurisdiction vested by the constitution in the Supreme Court with implicit trust
and faith, and extraordinary care and caution has to be observed in the exercise of this
jurisdiction. Article 136 does not confer a right of appeal on a party but vests a vast
discretion in the Supreme Court meant to be exercised on the considerations of justice, call of
duty and eradicating justice...”
4
Raigarh Jute Mills Ltd. v. Eastern Railway, AIR 1958 SC 525.
5
Ram Saran Das & Bros v. Commercial Tax Officer, AIR 1969 SC 1326.
6
Bharat Bank v. Employees of Bharat Bank, 1950 SCR 459.
7
Zahira Habibullah Sheikh v. State of Gujarat, (2004) 5 SCC 353.
8
Orissa Cement v. The State of Orissa, AIR 1991 SC 1676.
9
East India Hotels Ltd. v. Syndicate Bank Ltd.
10
Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar, AIR 2004 SC 2351.
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1.2.6. In the instant matter, the Petitioner has the requisite locus standi to file the SLP. Not only has
the judgement and order of HC of Mahanagara done injustice to her, she has also been treated
arbitrarily. The SLP filed by the petitioner raises important questions of law, which are the
very basis of why the SLP is maintainable.
1.3. THE SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 IS LIABLE TO BE
ENTERTAINED BY THE SUPREME COURT
1.3.1. The Hon’ble Supreme Court has described the nature if its powers under Art.136 as11, “…The
exercise of jurisdiction conferred by Art.136 of the Constitution on this court is discretionary.
It does not confer a right to appeal on a party to appeal; it only confers a discretionary
power of the widest amplitude on this court to be exercised for satisfying the demands of
justice. On the one hand, it is an exceptional power to be exercised sparingly, with caution
and care and to remedy extraordinary situations occasioning gross failure of justice, on the
other hand, it is an overriding power where under the court may generously step in to impart
justice and remedy injustice...”
1.3.2. It is however plain that when the Supreme Court reaches the conclusion that a person has
been dealt with arbitrarily or that a court or tribunal has not given a fair deal to litigant, then
no technical hurdles of any kind like the finality of finding of facts, or otherwise, can stand in
the way of exercise of this power.12But in case of grave injustice, the court is duty bound to
interfere with the findings off the fact even if they have been affirmed thrice13.
1.3.3. It is humbly submitted that the Petitioners have approached the Court seeking remedy
through SLP under Art.136. It has been held in plethora of cases that a SLP filed under
Art.136 is maintainable when gross injustice has been done. The Supreme Court grants leave
only when exceptional and special circumstances exist, substantial and grave injustice has
been done, and the case in question presents features of sufficient gravity to warrant a review
of the decision appealed against and hence the SLP is liable to be entertained by the Supreme
Court and is maintainable.
1.3.4. It is humbly submitted before the Hon’ble Supreme Court that the SLP filed by the Petitioner
is maintainable as the Petitioner has the requisite locus standi to file the SLP and the same is
liable to be entertained by this Court.
11
Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2036.
12
Arunachalam v. Sethuratnam, AIR 1979 SC 1284.
13
Indira Kaur v. Sheo Lal Kapoor, (1988) 2 SCC 488.
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2. AN AMENDMENT TO A WRITTEN STATEMENT CAN BE MADE, IN LIGHT OF

A NEW LEGAL OPINION, DEPSITE DUE DILIGENCE UNDER THE PROVISO TO
ORDER VI RULE 17 OF THE CPC 1908
2.1. SCOPE OF THE PROVISO TO ORDER VI RULE 17 OF THE CPC

2.1.1. A proviso to O.VI R.17 was added in 199914, but it was replaced with the present proviso in
200215. The present proviso enacts restrictions on amendment of pleadings but unlike in the
act of 1999, the rigour of the restrictions has been considerably relaxed by introducing the
concepts of “commencement of trial” and exercise of “due diligence”16, with an object to
prevent frivolous applications which are filed to delay the trial17.
a. Concept of “Commencement of Trial”

2.1.2. The CPC does not define the term “commencement of trial”. This Court, in the matter of
Kailash v. Nanhku18 explained the term in accordance with a civil suit. It was held that, “…In
a civil suit, the trial begins when issues are framed and the case is set down for recording
evidence. All the proceedings before that stage are treated as proceedings preliminary to the
trial or for making the case ready for trial…”
2.1.3. In the matter of Baldev Singh & Ors v. Manohar Singh & Ors19, the Supreme Court
interpreted the term within the ambit of Order VI Rule 17 of the CPC 1908. It held that,
“…The commencement of the trial as used in proviso to Order VI Rule 17 in the CPC must be
understood in the limited sense as meaning the final hearing of the suit, examination of
witnesses, filing of documents and addressing of arguments…”
2.1.4. Hence, it can be said that “commencement of trial” occurs when the issues of the case are
framed by the Court.
b. Concept of “Due Diligence”

2.1.5. The words “due diligence” have not been defined, per se. Due diligence does not operate
under the sign of certainty. Rather it proceeds via the legal doctrine of reasonable care, the
14
The Code of Civil Procedure (Amendment) Act, 1999. (Act No. 46 of 1999)
15
The Code of Civil Procedure (Amendment) Act, 2002. (Act No. 22 of 2002)
16
Sri S.M. Deka, “Notes on the Proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908", North
Eastern Judicial Officers’ Training Institute.
17
Salem Advocate Bar Assn. (II) v. Union of India, (2005) 6 SCC 344.
18
Kailash v. Nanhku, (2005) 4 SCC 480.
19
Baldev Singh & Ors v. Manohar Singh & Ors, (2006) 6 SCC 498.
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care that is ‘due’ in due diligence20. ‘Due’ means lawful, sufficient and regular21. The word
‘diligence’ means careful and persistent application or effort22.
2.1.6. In the case of Chander Kanta Bansal v. Rajinder Singh Anand23, this Court defined and
interpreted the term as, “…“Due diligence” means reasonable diligence; it means such
diligence as a prudent man would exercise in the conduct of his own affairs…”
2.1.7. In the matter of J.Samuel & Ors v. Gattu Mahesh & Ors24 it was 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…”25
2.1.8. From the above interpretations, it can be understood that due diligence is the reasonable
measures and precautions taken by a prudent person before taking any specific action or step,
in general. From the legal perspective, due diligence is the legal obligation that lies on the
parties in a suit to investigate all matters and be aware of all the facts relating to the case,
before the commencement of trial.
c. Relation between the concepts of “due diligence” and “commencement of trial” in the
context of the proviso
2.1.9. The relation between the two concepts was interpreted in the matter of Ajendraprasadji N.
Pandey v. Swami Keshavprakeshdasji N26 in the following manner, “…Either treating the
date of settlement of issues as date of commencement of trial or treating the filing of affidavit
which is treated as examination-in-chief as date of commencement of trial, the matter will fall
under the proviso to O.VI R.17 CPC. The defendant has, therefore, to prove that in spite of
due diligence, he could not have raised the matter before the commencement of trial…” The
Supreme Court, in this manner, considered the scope of amendment in O.VI R.17 of the CPC
1908.
2.1.10. From the above judgement, it can be understood that the obligation of having complete
knowledge of all the facts about the matter lie on the party to the proceedings and that they
20
Bill Maurer, “Cultural Anthropology”, Vol.20, No.4, Nov 2005, p. 474-505.
21
Webster Comprehensive Dictionary, Deluxe Encyclopaedic Edition, Trident Press Intl., Pg. 390.
22
Oxford Dictionary (Edn. 2006).
23
Chander Kanta Bansal v. Rajinder Singh Anand, (2008) 5 SCC 117.
24
J.Samuel & Ors v. Gattu Mahesh & Ors, (2012) 2 SCC 300.
25
Id.
26
Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N, (2006) 12 SCC 1.
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need to raise all issues regarding the same in the Court, via their pleadings, before the trial
commences, i.e. before the issues are framed, unless it is proved that the matter could not
have been raised before the commencement of trial.
2.1.11. In the instant matter, Lisa had taken all the necessary steps in order to ensure due diligence
before the commencement of the trial. Lisa had complete knowledge of the relevant facts
regarding Rajendra, the property in question and the vital documents of the case. The
amendment Lisa wants to make is such which could not have been brought to light before the
commencement of the trial.
2.1.12. It is important to note that Lisa had been informed that the “Will” had no legal relevance in
view of their Consent Decree, by Rajendra, in November 2012, when she received the copy
of the “Will” from him.27 When Lisa was given this information by Rajendra, she could not
take any action against the said Consent Decree, since she had limited knowledge of legal
documents and provisions. The language of law, legal terminology and the law may become
excessively complex and difficult to understand for the general masses.28 It is very difficult
for the common man to understand the intricacies and technicalities of the law.
2.1.13. Hence, it is submitted that Lisa had relevant knowledge about the matter in the suit and that
all necessary steps were taken by her to discharge adequate due diligence and that the
amendment she intends to make to her Written Statement, could not have been raised before
the commencement of the trial.
2.2. THE REAL QUESTION IN CONTROVERSY BETWEEN THE PARTIES

2.2.1. “…The first condition which must be satisfied before the amendment can be allowed by the
court is whether such amendment is necessary for the determination of the real question in
controversy. This is the basic test which should govern the courts' discretion in grant or
refusal of the amendment…” was what the judges held in Revajeetu Builders & Developers v.
Narayanaswamy & Sons.29
2.2.2. In the matter of Rajkumar Gurawara v. S.K. Sarwagi and Co30 it was held that,“…To put it
clear, O.6 R.17 CPC confers jurisdiction on the court to allow either party to alter or amend
his pleadings at any stage of the proceedings on such terms as may be just. Such amendments
27
Moot Proposition, ¶ 6.
28
Himani Singh, “Language of Law – Ambiguities and Interpretation”, American International Journal of
Research in Humanities, Arts and Social Sciences, 2013 Edn, P.126.
29
Revajeetu Builders & Developers v. Narayanaswamy & Sons, (2009) 10 SCC 84.
30
Rajkumar Gurawara v. S.K. Sarwagi and Co, (2008) 14 SCC 364.
18 | P a g e
seeking determination of the real question of the controversy between the parties shall be
permitted to be made…”
2.2.3. In the matter of Ganesh Trading Co v. Moji Ram31 it was observed by the Supreme Court
that, “…Procedural law is intended to facilitate and not to obstruct the course of substantive
justice. Provisions relating to pleadings in civil cases are meant to give to each side
intimation of the case of the other so that it may be met, to enable courts to determine what is
really at issue between parties…”
2.2.4. In the instant matter, the real question in controversy between the two parties is the validity
of the “Will” in context of the already existing Consent Decree. The amendment of the
Written Statement, if allowed, will help in determining the real controversy between the
parties.
a. Delay is no ground for rejection of an application for amendment

2.2.5. It is well settled that delay is no ground for refusal of prayer for amendment32. The Supreme
Court has held in various judgements that all amendments that highlight the real matter in the
suit, can and should be allowed, despite a delay. The power to allow the amendment is wide
and can be exercised at any stage of the proceeding33, by the Court.
2.2.6. In Andhra Bank v. A.B.N. Amro Bank NV & Ors34 it was held by this Court that, “…delay in
filing the application cannot be the sole ground to refuse the prayer for amendment…”
2.2.7. In the matter of Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon35,
the Court said that,“…however late the proposed amendment, the amendment maybe allowed
if it can be made without injustice to the other side…”
2.2.8. In the instant matter, the amendment was sought by Lisa when a new legal opinion came into
light. This opinion not only brought into the picture important facts which would help in
determining the real question in controversy between Lisa and Rajendra, both of which could
not have been understood by Lisa before the trial commenced, which consequently explains
the delay on her part in filing a prayer for amendment.
31
Ganesh Trading Co v. Moji Ram, (1978) 2 SCC 91.
32
Andhra Bank v. ABN Amro Bank N.V., (2007) 6 SCC 167.
33
Abdul Rehman v. Mohd. Ruldu, (2012) 11 SCC 341.
34
Supra fn 32.
35
Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon , (1969) 1 SCC 869.
19 | P a g e
b. No scope of questioning merit of the amendment

2.2.9. In the matter of Andhra Bank v. A.B.N. Amro Bank NV & Ors36 it was held that, “…while
allowing an application for amendment of the pleadings, the Court cannot go into the
question of merit of such amendment. The only question at the time of considering the
amendment of the pleadings would be whether such amendment would be necessary for
decision of the real controversy between the parties in the suit…”
2.2.10. Few observations in this context were made by the judges in the matter of Prithi Pal Singh v.
Amrik Singh37, “(a) merits of the averments sought to be incorporated by way of amendment
are not to be judged at the stage of allowing the prayer for amendment; & (b) the dominant
purpose of the amendment is to minimise the litigation;”
2.2.11. In the matter of Baldev Singh and Ors v. Manohar Singh and Ors38 the Supreme Court held
that during amendment, “…amendment may also be necessary to bring to light subsequent
events and in that situation, the Court cannot examine the truthfulness or merit of the
amendment and may allow the amendment application having an extreme liberal view…”
2.2.12. Hence, it is settled that the Court shall not look at any other factors, but only whether the
amendment will bring into light the real matter in the suit. In the instant matter, the
amendment prayed for does bring out the real question in controversy, which is all that the
court should take into consideration.
c. Prayer for amendment cannot be refused due to an error in understanding and

interpreting the law
2.2.13. “…a party cannot be refused just relief merely because of some mistake, negligence,
inadvertence or even infraction of the Rules of Procedure. The Court always gives leave to
amend the pleading of a party, unless it is satisfied that the party applying was acting mala
fide, or that by his blunder he had caused injury to his opponent…, is what was held in the
case of Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon39.
2.2.14. In the instant matter, the mistake here was the wrong interpretation of the law on Lisa’s part
when she claimed that the Consent Decree was contrary to law in view of the “Will”, when in
actuality the validity of the Consent Decree cannot be challenged according to Order XXIII
Rule 3A of the CPC which states, “Bar to suit— No suit shall lie to set aside a decree on the
ground that the compromise on which the decree is based was not lawful.”
36
Supra fn 32.
37
Prithi Pal Singh v. Amrik Singh, (2013) 9 SCC 576.
38
Supra fn 19.
39
Supra fn 35.
20 | P a g e
2.2.15. It is settled law that no application for amendment can be refused simply because of a
misunderstanding or false interpretation of the law. If, via an amendment, this mistake can be
reversed, the Court can and must allow the amendment.
2.2.16. It is humbly submitted before the Hon’ble Supreme Court that a Written Statement can be
amended, in context of a new legal opinion, despite due diligence under the proviso to O.VI
R.17 of the CPC.
21 | P a g e
3. THE PROVISO TO ORDER VI RULE 17 OF THE CPC APPLIES TO AN

AMENDMENT CONCERNING FRAUD ON THE COURT, UNDER THE 2ND PART
OF THE RULE WHICH IS THE MANDATORY PART OF THE PROVISO
3.1. CONCEPT OF FRAUD

3.1.1. §.44 of the IEA defines Fraud as, “Any party to a suit or other proceedings may show that
any judgment, order or decree which is relevant under §.40, 41 or 42 and which has been
proved by the adverse party, was delivered by a court not competent to deliver it, or was
obtained by fraud or collusion.”
3.1.2. From the above interpretation, it can be understood that fraud is an act of deception for
securing something by taking unfair advantage of another. It is a deception in order to gain by
the loss of another. It is a cheating intended to get an advantage. Fraud could be alleged in the
court, if a party is unaware about a vital fact of the suit which would drastically bring the
party to the mercy of the other party.
3.1.3. A litigant, who approaches the court, is bound to produce all the documents executed by him
which are relevant to the litigation. If he withholds a vital document in order to gain
advantage on the other side then he would be guilty of playing fraud on the court as well as
on the opposite party. He can be summarily thrown out at any stage of the litigation. A
judgment or decree obtained by playing fraud on the court is a nullified and in the eyes of
law. Such a judgment/decree by the first court or by the highest court has to be treated as a
nullity by every court, whether superior or inferior. It can be challenged in any court even in
collateral proceedings.
3.1.4. In the instant matter, the “Will” being the vital document, it was hidden from Lisa. Lisa and
her mother both were unaware about the existence of a “Will”, especially her mother while
consenting to the Consent Decree. The “Will” was not disclosed by Rajendra.
3.2. OBLIGATION OF PARTY TO THE SUIT
3.2.1. Commission of fraud on court and suppression of material facts are the core issues. Fraud as
is well-known vitiates every solemn act. Fraud and justice never dwells together. It will bear
repetition to state that any order obtained by practising fraud on court is non-est in the eyes of
law.
22 | P a g e
3.2.2. In the matter of Chengalvarya Naidu v. Jagannath and Ors40, the Supreme Court held that
“...A litigant, who approaches the court, is bound to produce all the documents executed by
him which are relevant to the litigation. If he withholds a vital document in order to gain
advantage on the other side then he would be guilty of playing fraud on the court as well as
on the opposite part...”
3.2.3. No court in this land will allow a person to keep an advantage which he has obtained
by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has
been obtained by fraud. Fraud unravels everything. Once fraud is proved it vitiates
judgments, contracts and all transactions whatsoever.
3.2.4. In the matter, hence it is settled that, Rajendra was duty bound to disclose the “Will”. The
“Will” being an important document has been suppressed which amounts to fraud on the
court.
3.3. CHALLENGING THE VALIDITY OF A CONSENT DECREE

3.3.1. A negotiated agreement of the parties to a lawsuit which resolves the disputed issues and is
sanctioned by the court; often such an agreement by which the defendant agrees to cease an
activity or practice asserted by the government to be illegal.
3.3.2. Under O.XXIII R.3A of the CPC, it is 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. A compromise before a court is binding universally between the parties
.Hence in the instant matter, the consent decree which has been executed by the court cannot
be challenged on any grounds. The provision also covers a decree based on a fraudulent
compromise; hence a challenge to a compromised decree on the ground that it was obtained
by fraudulent means would fall under the said provision.
3.3.3. In the matter of Banwari Lal v. Chando Devi 41 the court has held that, “…if an agreement or
the compromise itself is fraudulent, then it shall be deemed to be void within the meaning of
the explanation to the above proviso and as such not lawful…”
3.3.4. In the instant matter, the Consent Decree has been obtained under fraud on the court and the
party i.e. Lisa as the “Will” was hidden by Rajendra during the finality of the Consent Decree
40
Chengalvarya Naidu v. Jagannath & Ors, (1994) 1 SCC 1.
41
Banwari Lal v.Chando Devi, AIR 1993 SC 1139 (1143).
23 | P a g e
3.4. FRAUD IS AN EXCEPTION TO THE AMENDMENT OF PLEADINGS

3.4.1. Under O.VI R.17 of the CPC, “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
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.’’
3.4.2. In the matter, Rajesh Kumar Aggarwal v. K.K. Modi42 the court has held that “… The
provision under first part of Rule 17 is discretionary but the second part is mandatory and
enjoins the court to allow all amendments which are necessary for the purpose of
determining the real question in controversy between the parties…”
3.4.3. In the instant matter, the Consent Decree has been obtained under fraud and that is the real
question in controversy. The “Will” places the possession of the suit property to Lisa. Since
the Consent Decree was obtained by fraud, it should be set aside.
3.4.4. The Supreme Court has held that, “...A fraud puts an end to everything. It is a settled position
in law that such decree is nothing, but a nullity…”
3.4.5. In the matter of Prem Singh v. Birbal43 it was held that, “…When a document is valid, no
question arises of its cancellation. When a document is void ab initio, a decree for setting
aside the same would not be necessary as the same is honest in the eye of the law, as it would
be a nullity…”
3.4.6. It is humbly submitted before the Hon’ble Supreme Court that Lisa should be allowed to
amend the Written Statement since not only does it bring out the real question in controversy,
but since the suit is vitiated by fraud.
42
Rajesh Kumar Aggarwal v. K.K. Modi, (2006) 4 SCC 385.
43
Prem Singh v. Birbal, (2006) 5 SCC 353.
24 | P a g e
4. SECTION 4(1) OF THE CPC DOES NOT PREVENT A PARTY FROM FILING A
CASE UNDER SECTION 44 OF THE IEA AND THERE WERE FRADULENT
ACTIONS COMMITTED
4.1. RIGHT UNDER SECTION 4(1) OF THE CPC

4.1.1. §.4(1) of the CPC provides that in the absence of any specific provision to the contrary,
nothing in the Code shall be deemed to limit or otherwise affect any special or local law now
in force or any special jurisdiction or power conferred, or any special form of procedure
prescribed, by or under any other law for the time being in force.
4.1.2. It is submitted that the contention is that by virtue of §.4(1) of the CPC, nothing in the Code
shall limit or otherwise affect the operation of §.44 of the IEA, which is a special law. It is
contended that under §.44 of the IEA, a party has a statutory right to raise a plea based on
fraud.
4.1.3. The section does not mean that the CPC does not apply to proceedings under special or local
laws, but only enacts that where there is an inconsistency, the rule of the code do not prevail44
and so Lisa would not be in a breach of §.4(1) of the CPC .
4.2. RIGHT OF LISA UNDER SECTION 44 OF THE INDIAN EVIDENCE ACT

4.2.1. Under §.44 of the IEA, “Fraud or collusion in obtaining judgment, or incompetency of Court,
may be proved— “Any party to a suit or other proceeding may show that any judgment,
order or decree which is relevant under section 40, 41 or 42 and which has been proved by
the adverse party, was delivered by a Court not competent to deliver it, or was obtained by
fraud or collusion.”
4.2.2. It is humbly submitted that Lisa could not have discovered about the fact that there is a
“Will” left by Birendra Thomas and even after their diligence there was no possible way of
knowing about existence of the “Will” which was suppressed by the defendant as he had
fraudulent intentions and wanted to deceive Lisa in believing that the Consent Decree is the
way by which they could get their share of property.
4.2.3. In Nistarini Dassi v. Nundo Lall Bose 45 it was held that an innocent party may be allowed to
prove in court that a decree obtained against him in a different proceeding in another court of
concurrent jurisdiction was obtained by fraud, and if the court be of opinion that such decree
44
Abdul Alim v. Mohd. Saeed, AIR 1951 SC 661.
45
Nistarini Dassi v. Nundo Lall Bose, (1899) ILR 26 Cal 891.
25 | P a g e
so obtained in the other court cannot stand it has jurisdiction to treat that decree as a nullity
and render its effect nugatory.
a. The defendant had no intention of disclosing the “Will”

4.2.4. According to §.17 of the ICA, “Fraud means and includes, the suggestion, by a party to the
contract, as a fact, of that which is not true, by one he doesn’t believe to be true, with intent to
deceive another party thereto or his agent, or to induce him to enter into the contract.
4.2.5. Rajendra had no intention of disclosing the “Will” left by Birendra as the “Will” would
benefit Lisa’s mother and she would be the beneficiary to both the properties of the deceased
Birendra and Rajendra under false circumstances filed a Partition suit and was benefited by
half the property.
4.2.6. It is submitted that Rajendra had no intention of informing Lisa about the “Will” but since it
came to their knowledge that such a “Will” existed and after much persuasion a copy was
given and Rajendra claimed the “Will” to have no legal standing has he had fraudulently
gained part title on the property and being close to a popular tourist place wanted in no way
to lose his title.
4.2.7. It is therefore submitted that Rajendra had both guilty intention and he acted on that and
deprived the plaintiff of their property and also did not produce all the evident documents in
the court and therefore a fraud on court in imparting the judgement.
4.2.8. It is submitted that fraud is an extrinsic, collateral act, which vitiates the most solemn
proceedings of the courts of justice.
4.2.9. In Manchharam v. Kalidas46 it was held that under §.44 of the IEA, a party to a proceeding is
never disabled from showing that a judgment or order has been obtained by the adverse
party by fraud. In Nistarini Dassi v. Nundo Lall Bose47 it was held that, “…an innocent
party may be allowed to prove in court that a decree obtained against him in a
different proceeding in another Court of concurrent jurisdiction was obtained by
fraud...”
4.2.10. The judge further held that, “…I am of opinion that a decree so obtained cannot stand,
and that this court has jurisdiction if not to set it aside at least to treat it as a nullity and
render its effect nugatory...." 48
46
Manchharam v. Kalidas , 19 BOM 821.
47
Supra fn 45.
48
Bishunath Tewari & Ors. v. Mst. Mirchi, AIR 1955 Patna 66.
26 | P a g e
4.2.11. It is humbly submitted that a plea of fraud under §.44 can be raised in a collateral proceeding
and there is no need to file a separate suit as it increases the number of litigations 49 and said
that even suppression of material documents would also amount to a fraud on court also
delays the justice and also that if there is provision dealing with the limitation of the suit, it
has no bearing in relation of §.44 of the IEA50.
4.3. PROVISO UNDER CPC ORDER 6 RULE 17 DOES NOT ACT AS AN OBSTACLE
4.3.1. A party has a statutory right to raise a plea of fraud, which cannot be whittled down by the
proviso of O.6 R.17 of the CPC. The court has ample jurisdiction and power under §.151 and
153 to amend if required.
4.3.2. The Hon’ble Apex Court in its galaxy of judgments has again and again emphasized on how
fraud vitiates the whole proceedings. Fraud avoids all judicial acts, ecclesiastical or temporal.
Equity is also known to prevent the law from the crafty evasions and subtleties invented to
evade.
a. Inherent Powers of the court

4.3.3. §.151 of the CPC talks about, “Saving of inherent powers of the court.– Nothing in this Code
shall be deemed to limit or otherwise affect the inherent power of the Court to make such
orders as may be necessary for the ends of justice or to prevent abuse of the process of the
Court.”
4.3.4. It is humbly submitted that §.151 talks about meeting the ends of justice51. Thus this cause of
use of inherent powers indicates that the court may exercise the said powers in order for
substantive justice to prevail.
4.3.5. §.153 of the CPC, General Power to Amend reads out as, “The court may at any time, and on
such terms as to costs or otherwise as it may think fit, amend any defect or error in any
proceeding in a suit; and all necessary amendments shall be made for the purpose of
determining the real question or issue raised by or depending on such proceeding.”
4.3.6. §.153-A of the CPC reads as, “Power to amend decree or order where appeal is summarily
dismissed:Where an appellate court dismisses an appeal under Rule 11 of Order XLI, the
power of the court to amend, under section 152, the decree or order appealed against may be
49
Asharfi Lal v. Smt. Koili, AIR 1995 SC 1440.
50
Rajib Panda v. Lakhan Sendh Mahapatra & Ors, (1900) ILR 27 Cal 11.
51
Debendranath v. Satya Bala Dass, AIR 1950 Cal 217 273.
27 | P a g e
exercised by the court which had passed the decree or order in the first instance,
notwithstanding that the dismissal of the appeal has the effect of confirming the decree or
order, as the case may be, passed by the court of first instance.”
4.3.7. It is humbly submitted that the court having inherit powers can rule on the subject matter
even if no specific provisions of law exist.
4.3.8. The law in India is not different. §.44 of the IEA enables a party otherwise bound by a
previous adjudication to show that it was not final or binding because it is vitiated by fraud.
The provision therefore gives jurisdiction and authority to a Court to consider and decide the
question whether a prior adjudication is vitiated by fraud.
4.3.9. In Paranjpe v. Kanade52 it was held that, “…It is always competent to any Court to vacate
any judgment or order, if it be proved that such judgment or order was obtained by manifest
fraud…”
4.3.10. Lastly, it is humbly submitted that fraud vitiates everything and thus, the petitioners ought to
be granted a fair opportunity to establish that the consent decree, which is the very basis of
the suit filed by the respondents, is vitiated by fraud.
4.3.11. The learned Counsel has also referred to §.44 of the IEA and strong reliance is placed on the
decision in the case of Hamza Haji v. State of Kerala 53 in order to submit that the provisions
of §.44 of the IEA gives jurisdiction and authority, to the Court to consider and decide the
question, where prior adjudication is vitiated by fraud.54
4.3.12. It is next submitted that in an appropriate case, this Court may permit any such amendment,
being a Court of record under Art.215 of Constitution of India, which may not be fettered by
considerations as contained in the proviso to O.VI R.17 of the CPC, the requirement of the
proviso have been complied with, in as much as the amendment is sought immediately after
the legal advice was obtained and in claiming that in appropriate case this Court can allow
such amendment being a Court of record under Art.215 of the Constitution of India.
52
Paranjpe v. Kanade, ILR (1882) 6 BOM 148.
53
Hamza Haji v. State of Kerala, (2006) 7 SCC 416.
54
Mrs.Sunita Devendra Deshprabhu v. Sitadevi Deshprabhu, (2016) SCC BOM 9296.
28 | P a g e
PRAYER
Wherefore, in the light of the facts Stated, arguments advanced and authorities cited, it is
most humbly prayed and implored before the Hon’ble Supreme Court, that it may be
graciously pleased to adjudge and declare that:
I. THE SPECIAL LEAVE PETITION IS MAINTAINABLE UNDER ARTICLE 136

OF THE CONSTITUTION OF INDIA
II. AN AMENDMENT TO A WRITTEN STATEMENT CAN BE MADE IN THE

LIGHT OF A NEW LEGAL OPINION, DESPITE DUE DILIGENCE UNDER THE
PROVISO TO ORDER 6 RULE 17 OF CPC 1908
III. THE PART OF THE PROVISO TO ORDER 6 RULE 17 CONCERNING FRAUD

APPLIES TO THE AMENDMENT AND HENCE THE AMENDMENT SHOULD
BE ALLOWED
IV. SECTION 4(1) OF THE CPC DOES NOT PREVENT A PARTY FROM FILING A
CASE UNDER SECTION 44 OF THE IEA AND THAT THERE WERE
FRADULENT ACTIONS COMMITTED
Also, pass any other order that it may deem fit to meet the ends of justice, equity and good
conscience. For this act of kindness the Petitioner forever pray.
Sd/-
___________
Counsels for Petitioner
29 | P a g e

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CMR VI NATIONAL MOOT COURT COMPETITION, 2018.

IN THE HONORABLE SUPREME COURT OF INDIA

THE PETITION FILED UNDER ARTICLE 136(1) OF THE CONSTITUTION OF

IN SPECIAL LEAVE PETITION NO.: OF 2018

CMR VI NATIONAL MOOT COURT COMPETITION, 2018

WRITTEN SUBMISSION ON BEHLAF OF THE PETITIONER

MOST RESPECTFULLY SUBMITTED

COUNSEL FOR THE PETITIONER

INDEX OF AUTHORITIES ………………………………………………………………. 3

STATEMENT OF JURISDICTION …………………………………………..………….. 9

STATEMENT OF FACTS ……………………………………………………………….. 10

SUMMARY OF PLEADINGS …………………………………………………………… 12

1. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE UNDER

SR.NO. STATUTES REFERRED CITED ON PAGE NO.

1. THE CODE OF CIVIL PROCEDURE PASSIM

2. Abdul Rehman v. Mohd. Ruldu, 19

8. Baldev Singh and Ors v. Manohar Singh and Ors, 16, 20

20. Jai Jai Ram Manohar Lal v. National Building 19

29. Prithi Pal Singh v. Amrik Singh, 20

38. Tirupati Balaji Developers Pvt. Ltd. v. State of 14

3. TREATISES, BOOKS, REPORTS AND DIGESTS

4. M.P Jain, “The Code of Civil Procedure”, 4th Edn., 2016.

5. DYNAMIC LINKS (OFFICIAL WEBSITES APPROVED BY THE APEX COURT OF UNION OF

SR.NO ABBREVIATIONS FULL FORMS

5. AIR ALL INDIA REPORTER

6. AWC ALLAHABAD WEEKLY CASES

8. CPC THE CODE OF CIVIL PROCEDURE, 1908

10. HON’BLE HONOURABLE

11. ICA THE INDIAN CONTRACT ACT, 1872

12. ID JUST ABOVE

13. IEA THE INDIAN EVIDENCE ACT, 1872

14. LTD. LIMITED

15. MRS. MISTRESS

17. ORS. OTHERS

19. PVT. PRIVATE

21. SC SUPREME COURT

22. SCC SUPREME COURT CASES

23. SCR SUPREME COURT REPORTER

24. SLP SPECIAL LEAVE PETITION

25. SUPRA ABOVE MENTIONED

26. UOI UNION OF INDIA

27. VOL. VOLUME

Article 136(1) of the Constitution of India provides that:

THE PETITIONER SUBMITS THE FOLLOWING ISSUES FOR CONSIDERATION

THESE ISSUES ARE ANALOGOUS TO THE ISSUES FRAMED BY THE

1. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE UNDER

1. THE SPECIAL LEAVE PETITION IS MAINTAINABLE UNDER ARTICLE 126

2. AN AMENDMENT TO A WRITTEN STATEMENT CAN BE MADE, IN LIGHT

4. SECTION 4(1) OF THE CPC PREVENTS A PARTY FROM FILING A CASE

1. THE SPECIAL LEAVE PETITION IS MAINTAINABLE UNDER ARTICLE 136 OF

1.1. CONCEPT OF SLP

2. AN AMENDMENT TO A WRITTEN STATEMENT CAN BE MADE, IN LIGHT OF

2.1. SCOPE OF THE PROVISO TO ORDER VI RULE 17 OF THE CPC

a. Concept of “Commencement of Trial”

b. Concept of “Due Diligence”

2.2. THE REAL QUESTION IN CONTROVERSY BETWEEN THE PARTIES

a. Delay is no ground for rejection of an application for amendment

b. No scope of questioning merit of the amendment

c. Prayer for amendment cannot be refused due to an error in understanding and

3. THE PROVISO TO ORDER VI RULE 17 OF THE CPC APPLIES TO AN

3.1. CONCEPT OF FRAUD

3.2. OBLIGATION OF PARTY TO THE SUIT

3.3. CHALLENGING THE VALIDITY OF A CONSENT DECREE