Case Note & Summary
The petitioner, Ms. Sheela Suresh Nimkar, filed a writ petition under Article 227 of the Constitution of India challenging an order dated 10 June 2015 passed by the Joint Civil Judge Senior Division, Pune, rejecting her application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (CPC) in Special Civil Suit No. 1281 of 2014. The petitioner had sold a flat to her parents by a registered sale deed dated 5 June 2006 for Rs. 14,00,000, with an alleged agreement that the parents would execute a deed of re-conveyance upon the demise of either of them. The petitioner's mother died on 13 November 2010 and her father on 23 July 2014. The petitioner claimed that her father had executed a Will in favor of the defendant (her brother), which she disputed. In the plaint, she had already averred that her father was unable to sign any document and that the defendant tried to get the Will executed against his wishes. The amendment sought to add a declaration that the Will was not binding on her. The trial court rejected the application, finding that the amendment was merely an amplification of existing pleadings and not necessary for determining the controversy. The High Court upheld this decision, noting that the petitioner was aware of the Will at the time of filing the suit and had already disputed it in the plaint. The court held that the amendment was not necessary for the purpose of determining the real question in controversy and that allowing it would cause prejudice to the defendant. The petition was dismissed.
Headnote
A) Civil Procedure Code - Amendment of Pleadings - Order 6 Rule 17 CPC - Necessity for Determining Controversy - The plaintiff sought to amend the plaint to add a declaration that the Will executed by her father was not binding on her. The court held that since the plaintiff was aware of the Will at the time of filing the suit, the amendment was not necessary for determining the real controversy and would cause prejudice to the defendant. (Paras 1-4)
B) Civil Procedure Code - Amendment of Pleadings - Order 6 Rule 17 CPC - Knowledge of Facts - The plaintiff's own pleadings showed she knew about the Will and disputed it. Therefore, the amendment was not required to bring out the real controversy, and the trial court's rejection was justified. (Paras 2-4)
Issue of Consideration
Whether the trial court erred in rejecting the plaintiff's application under Order 6 Rule 17 CPC seeking to amend the plaint to incorporate a declaration that the Will executed by her father was not binding on her.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order dated 10 June 2015 rejecting the amendment application.
Law Points
- Order 6 Rule 17 CPC
- Amendment of pleadings
- Necessary for determining controversy
- Prejudice
- Knowledge of facts at time of suit
Case Details
2019 LawText (BOM) (07) 240
WRIT PETITION NO. 8261 OF 2015
Mr. Uday Warunjikar for the petitioner; Mr. Hassnain Kazi Sayyed a/w. Ms. Shraddha Vavhal for the respondent.
Mr. Vilas Vishnu Chansarkar
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging the rejection of an application under Order 6 Rule 17 CPC for amendment of plaint.
Remedy Sought
The petitioner sought to set aside the trial court's order dated 10 June 2015 and allow the amendment application.
Filing Reason
The petitioner's application under Order 6 Rule 17 CPC was rejected by the Joint Civil Judge Senior Division, Pune on 10 June 2015.
Previous Decisions
The trial court rejected the amendment application on 10 June 2015, finding that the amendment was not necessary for determining the controversy and was merely an amplification of existing pleadings.
Issues
Whether the trial court erred in rejecting the plaintiff's application under Order 6 Rule 17 CPC seeking to amend the plaint to incorporate a declaration that the Will executed by her father was not binding on her.
Submissions/Arguments
The petitioner argued that the amendment was necessary to bring out the real controversy and that no prejudice would be caused to the defendant.
The respondent opposed the amendment, contending that the petitioner was aware of the Will at the time of filing the suit and the amendment was not necessary.
Ratio Decidendi
An amendment under Order 6 Rule 17 CPC is not permissible if the party seeking amendment was aware of the facts at the time of filing the suit and the amendment is not necessary for determining the real controversy. Allowing such amendment would cause prejudice to the other side.
Judgment Excerpts
Petitioner's application under Order 6 Rule 17 Civil Procedure Code (“CPC” for short) has been rejected by the Joint Civil Judge Senior Division, Pune on 10th June, 2015 having found, that the plaintiff was just seeking to amplify and reproduce pleadings in the plaint and amendment proposed was not necessary for the purpose of determining the question in controversy.
Thus, from the pleadings it is obvious that, the plaintiff knew that her father had executed a Will which she disputes in so many words. In view of this, the plaintiff ought to have sought a declaration that Will executed by her father, is not binding on her when the suit was instituted.
Procedural History
The petitioner filed Special Civil Suit No. 1281 of 2014 before the Joint Civil Judge Senior Division, Pune. During the pendency of the suit, she filed an application under Order 6 Rule 17 CPC seeking amendment of the plaint. The trial court rejected the application on 10 June 2015. Aggrieved, the petitioner filed the present writ petition under Article 227 of the Constitution of India before the Bombay High Court.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 6 Rule 17
- Constitution of India: Article 227
