Case Note & Summary
The petitioner, Kailas Shivling Jagtap, filed a writ petition challenging the order dated 4th March 2011 passed by the Civil Judge, Junior Division, Karjat, which allowed an application for amendment filed by the respondent-plaintiff in Regular Civil Suit No.227 of 2008. The suit was instituted on 8th December 2008. The petitioner-defendant filed his say on 16th January 2009 upon receipt of summons. Issues were framed on 30th March 2009, and the suit was posted for evidence. The plaintiff examined himself and one witness, and the matter was adjourned for cross-examination of the plaintiff's witnesses. At that stage, the plaintiff filed an application for amendment of the plaint. The petitioner opposed the amendment on the ground that it was filed after the commencement of trial and the plaintiff failed to show due diligence. The trial court allowed the amendment. The High Court examined the proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908, which states that after the trial has commenced, no amendment shall be allowed unless the court comes to the conclusion that despite due diligence, the party could not have raised the matter before the commencement of trial. The court noted that issues were framed on 30th March 2009, and the plaintiff had already examined himself and one witness. The amendment was sought after the trial had commenced. The trial court did not record any finding that the plaintiff could not have raised the amendment earlier despite due diligence. Therefore, the High Court held that the impugned order was illegal and set it aside. The writ petition was allowed, and the amendment application was dismissed.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Due Diligence - The proviso to Order VI Rule 17 CPC bars amendment after trial has commenced unless the party shows that despite due diligence, the matter could not have been raised earlier - The trial court allowed amendment after issues were framed and evidence partly recorded, without recording satisfaction as to due diligence - Held that the order allowing amendment was illegal and liable to be set aside (Paras 5-7).
Issue of Consideration
Whether the trial court erred in allowing an amendment application filed after the commencement of trial without the plaintiff demonstrating that the amendment could not have been sought earlier despite due diligence, in contravention of the proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908.
Final Decision
The writ petition is allowed. The impugned order dated 4th March 2011 passed by the Civil Judge, Junior Division, Karjat, allowing the amendment application, is set aside. The amendment application stands dismissed. Rule made absolute accordingly.
Law Points
- Amendment of pleadings after commencement of trial is barred under Order VI Rule 17 CPC unless the party could not have raised the matter earlier despite due diligence
- Amendment application filed after issues framed and evidence partly recorded is not maintainable without showing due diligence
