Case Note & Summary
The petitioner, Shri Cesar Augusto do Rego Fernandes, filed a writ petition challenging an order of the Civil Judge, Junior Division at Panaji, which rejected his application for amendment of the written statement in Regular Civil Suit No. 79/2009/D. The petitioner had originally filed a written statement contending that the respondent was occupying the suit premises and/or his services were hired for running a lodge. By the proposed amendment, the petitioner sought to amplify this contention by bringing additional material to corroborate the existing plea. The trial court dismissed the application on the ground that the petitioner failed to establish due diligence as required under the proviso to Order 6 Rule 17 of the Code of Civil Procedure, 1908 (CPC). The petitioner argued that the original written statement was filed in a hurry and the omission was realized only when preparing the affidavit. The respondent supported the impugned order, contending that after the 2002 amendment to the CPC, due diligence is mandatory. The High Court, relying on the judgments of the Supreme Court in Rameshkumar Agarwal vs. Rajmala Exports Private Limited & Ors. (2012) 5 SCC 337 and State of Madhya Pradesh vs. Union of India & anr. (2011) 12 SCC 268, held that the trial court was not justified in rejecting the amendment. The court observed that the amendment sought to amplify an existing plea and did not introduce a new case. Since the trial had not yet commenced, the proviso requiring due diligence was not strictly applicable. The court set aside the impugned order and allowed the amendment application, directing the petitioner to pay costs of Rs. 1,000 to the respondent.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order 6 Rule 17 CPC - Due Diligence - The court held that the trial court was not justified in rejecting the amendment application solely on the ground that the petitioner failed to establish due diligence, as the amendment sought to amplify an existing plea and was filed before the commencement of trial. The court emphasized that a liberal approach should be adopted in allowing amendments to avoid multiplicity of litigation. (Paras 3-6) B) Civil Procedure - Amendment of Written Statement - Order 6 Rule 17 CPC - Pre-trial Stage - The court noted that since the trial had not yet commenced, the proviso to Order 6 Rule 17 CPC (requiring due diligence) did not strictly apply, and the amendment could be allowed even without strict proof of due diligence. (Paras 5-6)
Issue of Consideration
Whether the trial court erred in rejecting the application for amendment of the written statement under Order 6 Rule 17 CPC on the ground of lack of due diligence.
Final Decision
The impugned order is set aside. The application for amendment of the written statement is allowed. The petitioner is directed to pay costs of Rs. 1,000 to the respondent.
Law Points
- Amendment of pleadings
- Order 6 Rule 17 CPC
- due diligence
- liberal approach
- pre-trial stage
