Case Note & Summary
The Bombay High Court at Goa dismissed two writ petitions filed by the defendants in Special Civil Suit Nos.23/2010/B and 24/2010/B, challenging a common order dated 10th February 2011 passed by the Civil Judge, Senior Division, Panaji. The impugned order rejected the defendants' applications for amendment of their written statement. The petitioners, Far Pavilions Tours and Travels Pvt. Ltd. and Cox and Kings India Ltd., were defendants in vacation suits filed by the respondents (Amit Roshan Kishore and Manish Pratik) seeking possession and other reliefs. The suits were filed in 2010, and issues were framed on 21st December 2010. The defendants filed applications for amendment of written statement on 10th January 2011, after the trial had commenced and evidence had begun. The trial court rejected the applications on the ground that the amendments were sought after the commencement of trial and the defendants failed to show that despite due diligence, they could not have raised the matters earlier. The High Court upheld this reasoning, noting that the proviso to Order 6 Rule 17 of the Code of Civil Procedure, 1908, prohibits amendment after trial has commenced unless the court is satisfied that the party could not have raised the matter earlier despite due diligence. The court found that the defendants' explanation of inadvertence or mistake was not satisfactory. The court also rejected the argument that a vacation suit is a summary proceeding where the proviso does not apply, holding that a vacation suit is a regular suit governed by the same procedural rules. The petitions were dismissed with no order as to costs.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order 6 Rule 17 CPC - Leave to Amend After Trial Commencement - The proviso to Order 6 Rule 17 CPC mandates that no application for amendment shall be allowed after 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. The defendants' application for amendment of written statement was filed after issues were framed and evidence had begun, and no satisfactory explanation for the delay was offered. The trial court's rejection of the application was upheld. (Paras 5-10) B) Civil Procedure - Vacation Suit - Nature of Proceedings - A vacation suit under Order 39 Rule 1 and 2 CPC is a regular suit and not a summary proceeding. The provisions of Order 6 Rule 17 CPC apply fully to such suits. The fact that the suit is a vacation suit does not exempt the parties from the rigour of the proviso to Order 6 Rule 17. (Paras 4, 8) C) Civil Procedure - Due Diligence - Burden of Proof - The burden is on the party seeking amendment after trial has commenced to show that despite due diligence, the matter could not have been raised earlier. Mere assertion of inadvertence or mistake is insufficient. The defendants failed to discharge this burden. (Paras 9-10)
Issue of Consideration
Whether the trial court erred in rejecting the defendants' application for amendment of the written statement filed after the commencement of trial, in the absence of a satisfactory explanation for the delay as required under the proviso to Order 6 Rule 17 of the Code of Civil Procedure, 1908.
Final Decision
Both writ petitions are dismissed. The impugned order dated 10th February 2011 passed by the Civil Judge, Senior Division, Panaji in Special Civil Suit Nos.23/2010/B and 24/2010/B is upheld. No order as to costs.
Law Points
- Amendment of pleadings after commencement of trial
- Order 6 Rule 17 CPC
- proviso requiring due diligence
- vacation suit
- leave to amend written statement
- delay and laches
