Case Note & Summary
The Bombay High Court dismissed a petition challenging an order of the Small Causes Court, Mumbai, which allowed the plaintiffs to amend their plaint in a suit for recovery of possession pending since 1998. The suit, R.A.E. & R Suit No. 407 of 1998, was originally filed on the ground of bonafide requirement. Over time, the plaintiffs noticed different occupants and added several defendants. The proposed amendment sought to add grounds of unlawful subletting and non-user. The petitioners, defendant nos. 4 to 6, argued that this was the ninth amendment, sought at a belated stage due to 'oversight' and 'inadvertence', and relied on Basavaraj v. Indira to contend that such grounds cannot justify amendment. They also argued that the claim might be time-barred. The respondents countered that the amendment did not change the nature of the suit, foundational pleadings already existed, and allowing it would prevent multiplicity of litigation. The High Court noted that the suit was 26 years old and both parties contributed to delay. However, the court found that the amendment did not change the nature of the suit because the plaint already contained foundational pleadings about unlawful subletting and non-user. The court distinguished Basavaraj, where the amendment sought to challenge the very basis of the suit, unlike the present case. The court held that the amendment was necessary to determine the real controversy and that no prejudice was caused to the petitioners. The petition was dismissed, and the Small Causes Court's order was upheld.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order 6 Rule 17 CPC - Due Diligence - The court held that where foundational pleadings for the proposed amendment already exist in the plaint, the amendment does not change the nature of the suit and can be allowed even after commencement of trial, provided no prejudice is caused. The requirement of due diligence under the proviso to Order 6 Rule 17 CPC is not an absolute bar if the amendment is necessary for determining the real controversy. (Paras 7-10) B) Civil Procedure - Amendment of Pleadings - Change in Nature of Suit - The court distinguished Basavaraj v. Indira, noting that in that case the amendment sought to challenge the very compromise decree on which the suit was originally based, thereby changing the nature of the suit. In the present case, the amendment merely added formal grounds of unlawful subletting and non-user, which were already supported by foundational pleadings, and thus did not alter the nature of the suit. (Paras 10-11) C) Civil Procedure - Amendment of Pleadings - Limitation - The court observed that the issue of limitation is a relevant factor but not decisive; the trial court had left the question of limitation open, which was a proper approach. The amendment was allowed to avoid multiplicity of litigation. (Paras 3-4)
Issue of Consideration
Whether the Small Causes Court erred in allowing the ninth amendment of the plaint in a suit pending since 1998, adding grounds of unlawful subletting and non-user, despite the delay and alleged lack of due diligence.
Final Decision
The Bombay High Court dismissed the petition and upheld the order of the Small Causes Court allowing the amendment of the plaint.
Law Points
- Amendment of pleadings
- Order 6 Rule 17 CPC
- due diligence
- change in nature of suit
- limitation
- multiplicity of litigation
