Case Note & Summary
The litigation arose from a partition suit filed by the original plaintiff in 2011 before the Civil Judge Senior Division, Nanded, seeking partition and separate possession of a double-storied residential house bearing CTS No.3179, claiming a one-third share and perpetual injunction. The plaintiff alleged that the property was purchased by his father in 1954, mutated in the names of the legal heirs after the father's death in 1983, and that no partition had taken place. He contended that defendant no.1 had mutated his name on the city survey record by using a forged will and had purchased the share of defendant no.2 in 2011. The defendants relied on a will deed allegedly executed by the mother Devkaben in favour of defendant no.1 and a sale deed executed by defendant no.2. During the suit, the plaintiff filed an application below Exh.176 seeking to amend the plaint and add a party, specifically to include the son of the deceased sister as defendant no.3, change the claimed share from one-third to one-fourth, and add a declaration that the sale deed dated 15.07.2011 and will deed dated 23.09.1994 were null and void. The trial court rejected the application by order dated 25.02.2025, holding that the plaintiff was aware of the will at the time of filing and did not seek a declaration earlier, and that the sister or her son had no right in the joint family property. The plaintiff challenged this order by writ petition. Before the High Court, the petitioner argued that the amendment was necessary to decide the real controversy, that paragraph 7 of the plaint already denied the will, and that all amendments should be allowed unless they cause prejudice, relying on LIC v. Sanjeev Builders and other decisions. The respondents argued that the amendment was belated by over ten years, hit by the proviso to Order VI Rule 17 CPC, and would cause prejudice, relying on Basavaraj and other cases. The High Court considered Order VI Rule 17 CPC and quoted the conclusions in LIC, emphasizing that amendments necessary for the real controversy should be allowed unless injustice or prejudice, and that after trial commenced due diligence must be shown. The provided judgment text ended before the final operative order, so the ultimate decision on the writ petition is not available in the excerpt.
Headnote
A) Civil Procedure - Amendment of Pleadings - Liberal Amendment Mandate - Code of Civil Procedure, 1908, Order VI Rule 17 - The court reiterated that all amendments necessary for determining the real question in controversy must be allowed unless they cause injustice or prejudice; the word 'shall' makes this mandatory; amendments should be allowed to avoid multiplicity of proceedings unless they introduce a time-barred claim, change the nature of the suit, are malafide, or cause the other side to lose a valid defence. (Paras 10-12) B) Civil Procedure - Amendment After Commencement of Trial - Due Diligence Requirement - Code of Civil Procedure, 1908, Order VI Rule 17 proviso - The respondents contended that the amendment application filed after more than ten years and after commencement of trial was barred by the proviso; the trial court rejected it observing that the plaintiff was aware of the will deed at the time of filing and failed to show due diligence; the High Court considered the proviso and the requirement to establish due diligence before allowing post-trial amendment. (Paras 8-10) C) Civil Procedure - Addition of Party and Share Correction - Necessary Party and Oversight - Code of Civil Procedure, 1908, Order VI Rule 17 - The plaintiff sought to add the son of his deceased sister as defendant no.3 and amend the claimed share from 1/3 to 1/4, asserting oversight; the trial court held that the sister or her son had no right in the joint family property; the High Court considered whether the addition was necessary for effective adjudication of the partition suit. (Paras 4-5) D) Civil Procedure - Declaration of Voidness of Will and Sale Deed - Post-Trial Declaration - Code of Civil Procedure, 1908, Order VI Rule 17 - The plaintiff sought to add a prayer declaring the sale deed dated 15.07.2011 and will deed dated 23.09.1994 null and void; the trial court rejected this on grounds of awareness and delay; the High Court examined whether this amendment introduced a new case or was barred by the proviso. (Paras 4-5, 8)
Issue of Consideration
Whether the amendment application under Order VI Rule 17 CPC filed after commencement of trial should be allowed for addition of a party, change of plaintiff's share from 1/3 to 1/4, and declaration that sale deed and will deed are null and void, and whether the plaintiff showed due diligence as required by the proviso.
Law Points
- All amendments necessary for determining real question in controversy shall be allowed provided no injustice or prejudice
- use of 'shall' makes amendment mandatory
- amendment to be allowed if required for effective adjudication and to avoid multiplicity
- provided no injustice
- no withdrawal of admission
- no time-barred claim
- amendment generally allowed unless time-barred claim introduced
- changes nature of suit
- malafide
- or other side loses valid defence
- court should avoid hypertechnical approach and be liberal especially where opposite party can be compensated by costs
- no amendment after trial has commenced unless party shows due diligence under proviso to Order VI Rule 17 CPC
