Case Note & Summary
The petitioners, original defendants in Special Civil Suit No. 160 of 2012, challenged orders dated 13/03/2019 allowing two applications (exhibit no. 70 and 77) filed by the plaintiffs/respondents. The applications sought to add properties to the dispute and to implead third parties as defendants in the partition suit. The suit was filed for partition and separate possession. Issues were settled on 17/07/2013, and the affidavit in lieu of examination-in-chief was filed on 07/08/2014. The matter was pending for cross-examination when the amendment applications were filed. The petitioners argued that since the trial had commenced (affidavit of evidence filed), the proviso to Order VI Rule 17 CPC applied, requiring the plaintiffs to show due diligence that they could not have raised the new claims earlier. The trial court allowed the amendments, holding that the plaintiffs could not have discovered the new properties earlier due to lack of knowledge, and that the addition did not change the nature of the suit. The High Court, in its analysis, noted that the trial court's finding on due diligence was plausible and not perverse. It held that the amendment did not change the nature of the suit, which remained one for partition. The addition of parties was proper as all co-sharers are necessary parties in a partition suit. The court dismissed the writ petition, upholding the trial court's orders.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Proviso - Due Diligence - The proviso to Order VI Rule 17 CPC bars amendments after trial has commenced unless the party could not have raised the matter earlier with due diligence. The court held that the trial court's finding that the plaintiffs could not have discovered the new properties earlier due to lack of knowledge was a plausible finding, and the amendment did not change the nature of the suit. (Paras 1-10)
B) Civil Procedure - Addition of Parties - Order I Rule 10 CPC - Necessary Parties - In a partition suit, all co-sharers are necessary parties. The court held that the addition of third parties as defendants was proper as they were necessary for the complete adjudication of the dispute. (Paras 1-10)
C) Civil Procedure - Amendment of Pleadings - Change in Nature of Suit - The court held that the amendment seeking to add properties and parties did not change the nature of the suit from partition to something else, as the suit remained one for partition and separate possession. (Paras 1-10)
Issue of Consideration
Whether the trial court erred in allowing amendment applications under Order VI Rule 17 CPC after the trial had commenced, when the plaintiffs failed to show that they could not have raised the new claims earlier with due diligence.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's orders dated 13/03/2019 allowing the amendment applications.
Law Points
- Amendment of pleadings after commencement of trial
- Order VI Rule 17 CPC
- proviso
- due diligence
- change in nature of suit
- addition of parties
- partition suit
Case Details
2021 LawText (BOM) (08) 13
WRIT PETITION NO. 7721 OF 2019
Mr. Sushant Choudhari for Petitioners, Mr. Parag V. Barde for Respondent nos. 1 & 2
Anil s/o Ramsing Bilawar, Sunil s/o Ramsing Bilawar, Sudha w/o Ramsing Bilawar
Anita w/o Gopal Kadam, Sunita w/o Arjun Mohandas
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Nature of Litigation
Civil writ petition challenging orders allowing amendment of pleadings and addition of parties in a partition suit.
Remedy Sought
Petitioners (original defendants) sought to quash the trial court's orders dated 13/03/2019 allowing applications for amendment and addition of parties.
Filing Reason
The petitioners were aggrieved by the trial court allowing the plaintiffs to add properties and third parties as defendants after the trial had commenced.
Previous Decisions
The trial court allowed the amendment applications (exhibit no. 70 and 77) on 13/03/2019.
Issues
Whether the trial court erred in allowing amendment under Order VI Rule 17 CPC after trial had commenced without proper proof of due diligence.
Whether the amendment changed the nature of the suit.
Submissions/Arguments
Petitioners argued that since the affidavit in lieu of examination-in-chief was filed, trial had commenced, and the proviso to Order VI Rule 17 CPC required the plaintiffs to show due diligence, which they failed to do.
Respondents argued that the amendment was necessary to bring all properties and necessary parties on record, and the plaintiffs could not have discovered the new properties earlier.
Ratio Decidendi
The proviso to Order VI Rule 17 CPC does not bar amendment if the court finds that the party could not have raised the matter earlier with due diligence. The trial court's finding on due diligence was plausible and not perverse. The amendment did not change the nature of the suit, and addition of parties was proper as all co-sharers are necessary parties in a partition suit.
Judgment Excerpts
The present petitioners, are the original defendants, who are aggrieved by the orders dated 13/03/2019, by which two applications exhibit no. 70 and 77 permitting the plaintifs to add properties to the disputes and third parties as defendants have been allowed, in Special Civil Suit No. 160 of 2012, seeking partition and separate possession.
The issues were settled on 17/07/2013 and the afdavit in lieu of examination-in-chief was fled on 07/08/2014 and the matter was pending for the cross-examination when the applications for amendments were fled.
Procedural History
Special Civil Suit No. 160 of 2012 was filed for partition and separate possession. Issues were settled on 17/07/2013. Affidavit in lieu of examination-in-chief was filed on 07/08/2014. The matter was pending for cross-examination when the plaintiffs filed applications (exhibit no. 70 and 77) for amendment and addition of parties. The trial court allowed these applications on 13/03/2019. The defendants filed the present writ petition challenging those orders.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order VI Rule 17, Order I Rule 10
