Case Note & Summary
The petitioners, Salma Asgarali Makati and others, filed a Writ Petition under Article 227 of the Constitution challenging an order dated 22-10-2012 passed by the 9th Civil Judge Junior Division, Thane, allowing an application (Exhibit 56) filed by Respondent No.4 for amendment of the Written Statement. The suit in question, Special Civil Suit No.379 of 2006, was filed by the petitioners challenging a consent decree dated 21-3-2001 passed in Civil Suit No.11 of 2001. The consent decree was signed by Respondent No.4 and the Power of Attorney of one Sarabai Pachorawala, who expired after the consent terms were filed. The petitioners, claiming to be heirs of Sarabai, alleged that the Power of Attorney was withdrawn from court proceedings after Sarabai's death, and attributed a role to the Advocate (Respondent No.4) who appeared for Sarabai. Respondent No.4 sought to amend his Written Statement to incorporate paragraphs 4(a) to 4(d) to clarify his role and the instructions under which he acted. The Trial Court allowed the amendment, observing that the suit was at the stage of framing of issues and no prejudice would be caused to the plaintiffs. The High Court upheld the order, noting that the amendment was sought before the commencement of trial, no prejudice was caused that could not be compensated by costs, and the amendment was necessary for determining the real question in controversy. The petition was dismissed with costs of Rs. 5,000 payable to Respondent No.4.
Headnote
A) Civil Procedure - Amendment of Written Statement - Order VI Rule 17 CPC - Prejudice - The Court allowed amendment of Written Statement to incorporate paragraphs 4(a) to 4(d) as the suit was at the stage of framing of issues and no prejudice was caused to the Plaintiffs that could not be compensated by costs. The amendment sought to clarify the role of the Defendant No.4 Advocate and did not change the nature of the defence. (Paras 4-6) B) Civil Procedure - Stage of Amendment - Order VI Rule 17 CPC - Due Diligence - The amendment was sought before the commencement of trial and before framing of issues. The Court held that the requirement of due diligence under the proviso to Order VI Rule 17 CPC was satisfied as the amendment was necessary for determining the real question in controversy. (Paras 5-6)
Issue of Consideration
Whether the Trial Court was justified in allowing the amendment of the Written Statement filed by the Defendant No.4, especially when the suit was at the stage of framing of issues and no prejudice was caused to the Plaintiffs.
Final Decision
The High Court dismissed the Writ Petition and upheld the order of the Trial Court allowing the amendment of the Written Statement. The Petitioners were directed to pay costs of Rs. 5,000 to Respondent No.4.
Law Points
- Amendment of pleadings
- Order VI Rule 17 CPC
- Prejudice to opposite party
- Stage of suit
- Due diligence
