Case Note & Summary
The petitioner, Dela Gurudal Vanjari, filed a suit in 2005 seeking a declaration that a mutation entry was illegal and for an injunction against the respondent, Uddhal Govardhan Rathod. The trial court rejected his application for temporary injunction. Thereafter, the respondent allegedly forcibly took possession of the disputed property. The petitioner then filed an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (CPC) to amend the plaint to include a prayer for recovery of possession and to impeach a transaction dated 12.02.1999 as nominal and by way of loan. The trial court rejected the amendment as belated. The High Court allowed the writ petition, setting aside the trial court's order. It held that the amendment was based on subsequent events (dispossession after the injunction application was rejected) and could not have been anticipated. The proviso to Order 6 Rule 17 CPC, which restricts amendments after trial has commenced, does not apply to amendments necessitated by subsequent events. The court also held that the question of limitation is a mixed question of law and fact and cannot be decided at the amendment stage. The amendment did not change the nature of the suit. The court directed the trial court to allow the amendment and proceed with the suit.
Headnote
A) Civil Procedure - Amendment of Plaint - Order 6 Rule 17 CPC - Subsequent Events - The plaintiff sought amendment to add relief of recovery of possession after being dispossessed during pendency of suit, and to impeach a transaction as nominal. The trial court rejected it as belated. The High Court held that amendment based on subsequent events is permissible even after commencement of trial, as the proviso to Order 6 Rule 17 CPC does not bar amendments necessitated by events occurring after issues are framed. The court allowed the amendment, observing that the plaintiff's dispossession was a subsequent event that could not have been anticipated. (Paras 5-7) B) Civil Procedure - Limitation - Amendment of Plaint - Bar of Limitation - The defendant contended that the proposed amendment to impeach a 1999 transaction was barred by limitation. The High Court held that the question of limitation is a mixed question of law and fact and cannot be decided at the stage of amendment. The court should not refuse amendment solely on the ground of limitation if the claim is not ex facie barred. (Para 6) C) Civil Procedure - Change in Nature of Suit - Amendment of Plaint - The defendant argued that the amendment would change the nature of the suit. The High Court rejected this, noting that the amendment was based on subsequent events and did not alter the fundamental character of the suit, which remained a property dispute. (Para 6)
Issue of Consideration
Whether the trial court erred in rejecting the plaintiff's application for amendment of plaint seeking recovery of possession and impeachment of a transaction on grounds of delay and bar of limitation.
Final Decision
Writ petition allowed. Impugned order dated 30.06.2011 passed by Civil Judge Senior Division, Parola, rejecting amendment application, is set aside. The trial court is directed to allow the amendment and proceed with the suit in accordance with law.
Law Points
- Amendment of pleadings
- Order 6 Rule 17 CPC
- subsequent events
- change in nature of suit
- limitation
