Case Note & Summary
The plaintiffs filed a Chamber Summons seeking amendment of the plaint in a suit for specific performance of an agreement, declaration that termination was wrongful, and injunction. The suit was originally filed on 9 February 2011, after the plaintiffs withdrew an earlier suit (Suit No. 2502 of 2009) with liberty to file a fresh suit. The proposed amendments included legal submissions based on facts already stated in the plaint and a subsequent event, namely a notice under section 164 of the Maharashtra Co-operative Societies Act dated 15 March 2011. The defendants opposed the amendment on the ground that trial had commenced and the plaintiffs failed to show due diligence under the proviso to Order VI Rule 17 CPC. The Court held that the amendments were merely legal submissions and a subsequent event, and that the plaintiffs had exercised due diligence because the subsequent event occurred after the suit was filed. The Court allowed the Chamber Summons, permitting the amendment.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Commencement of Trial - The Court allowed amendment of plaint even after trial had commenced, holding that the proposed amendments were merely legal submissions based on facts already stated and a subsequent event (notice under section 164 of the Maharashtra Co-operative Societies Act). The Court found that the plaintiffs had exercised due diligence as the subsequent event occurred after the suit was filed and the legal submissions were based on existing facts. (Paras 1-6)
B) Limitation Act - Exclusion of Time - Section 14 - Order VII Rule 6 CPC - The amendment sought to incorporate averments to comply with Order VII Rule 6 CPC read with section 14 of the Limitation Act, 1963, to explain the withdrawal of an earlier suit and claim exclusion of time. The Court allowed the amendment as it was necessary for determining the real questions in controversy. (Paras 5-6)
Issue of Consideration
Whether the plaintiffs' application for amendment of the plaint should be allowed under Order VI Rule 17 of the Code of Civil Procedure, 1908, after the trial had commenced, and whether the plaintiffs had exercised due diligence in raising the matter before the commencement of trial.
Final Decision
The Court allowed the Chamber Summons and permitted the plaintiffs to amend the plaint as prayed.
Law Points
- Amendment of pleadings
- Order VI Rule 17 CPC
- commencement of trial
- due diligence
- subsequent event
- section 164 Maharashtra Co-operative Societies Act
- section 14 Limitation Act
- Order VII Rule 6 CPC
Case Details
2012 LawText (BOM) (03) 88
Chamber Summons No. 1881 of 2011 in Suit No. 659 of 2011
Mr. N.G. Thakkar, senior counsel with Mr. Anand Kumar i/b Anand Kumar and Daulat Jehangir for the Plaintiffs; Mr. A.S. Khandeparkar with Mr. D. Brijesh i/b Mr. D. Brijesh for the Defendant Nos.1 to 5; Mr. Kedar Wagle, for the Defendant No.7; Mr. Joaquim Reis i/b Mr. Amogh Karandikar for the Defendant No.8.
Nandkishore Bhandari & Anr.
Pavanpurta Co-op. Housing Sty. Ltd. & Ors.
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Nature of Litigation
Chamber Summons for amendment of plaint in a suit for specific performance of an agreement, declaration, and injunction.
Remedy Sought
Plaintiffs sought to amend the plaint to incorporate legal submissions based on existing facts and a subsequent event (notice under section 164 of the Maharashtra Co-operative Societies Act).
Filing Reason
The plaintiffs filed the Chamber Summons to amend the plaint to comply with Order VII Rule 6 CPC read with section 14 of the Limitation Act, 1963, and to bring on record a subsequent development.
Previous Decisions
The plaintiffs had earlier filed Suit No. 2502 of 2009, which was withdrawn with liberty to file a fresh suit on 4 February 2011. The present suit was filed on 9 February 2011.
Issues
Whether the amendment of plaint should be allowed after the trial has commenced under Order VI Rule 17 CPC.
Whether the plaintiffs exercised due diligence in raising the matter before the commencement of trial.
Submissions/Arguments
Plaintiffs argued that the amendments were merely legal submissions based on facts already stated and a subsequent event, and that they had exercised due diligence.
Defendants opposed the amendment on the ground that trial had commenced and the plaintiffs failed to show due diligence under the proviso to Order VI Rule 17 CPC.
Ratio Decidendi
The Court held that amendments which are merely legal submissions based on facts already stated in the plaint and which bring on record a subsequent event are permissible even after the trial has commenced, provided the party has exercised due diligence. The proviso to Order VI Rule 17 CPC does not bar such amendments if the matter could not have been raised earlier due to the subsequent event or if the amendments are based on existing facts.
Judgment Excerpts
The amendment would normally have been allowed. They are merely legal submissions based on facts which had already been stated in the plaint and to bring on record a subsequent development namely a notice under section 164 of the Maharashtra Co-operative Societies Act, dated 15th March 2011.
The only opposition to the chamber summons is based on the provisions of Order VI rule 17 of the Code of Civil Procedure, 1908, as amended by the Code of Civil Procedure (Amendment) Act, 2002...
Procedural History
The plaintiffs initially filed Suit No. 2502 of 2009 on 31 August 2009. On 6 December 2010, they issued a notice under section 164 of the Maharashtra Co-operative Societies Act. On 4 February 2011, the court permitted withdrawal of that suit with liberty to file a fresh suit. The present Suit No. 659 of 2011 was filed on 9 February 2011. The plaintiffs filed Notice of Motion No. 919 of 2011 for interlocutory reliefs. During the hearing of the Notice of Motion, the defendants raised an objection regarding the plaint's compliance with Order VII Rule 6 CPC and section 14 of the Limitation Act. The plaintiffs then filed the present Chamber Summons on an unspecified date seeking amendment of the plaint.
Acts & Sections
- Code of Civil Procedure, 1908: Order VI Rule 17, Order VII Rule 6
- Maharashtra Co-operative Societies Act: Section 164
- Limitation Act, 1963: Section 14
