Case Note & Summary
The petitioner, Walchandnagar Industries Limited, the original defendant No.1, challenged an order dated 28-11-2012 passed by the learned Civil Judge, Senior Division, Pune, allowing an application for amendment under Order VI, Rule 17 of the Code of Civil Procedure, 1908 (CPC) filed by the plaintiffs (respondent Nos.1 and 2) in Special Civil Suit No.590 of 2011. The suit was originally filed for a declaration that there was a concluded conditional contract between the plaintiffs and defendant No.1 for transfer of right, title and interest in the suit property in favour of defendant No.2, and for permanent injunction restraining defendant No.1 from dealing with the suit property. The amendment sought to add a relief of specific performance of contract and for possession of the suit property, along with certain facts to support such relief. The amendment application was filed after the conclusion of cross-examination of one plaintiff's witness, Mahendra Manilal Shah. The petitioner contended that the amendment was barred by the proviso to Order VI Rule 17 CPC, which prohibits amendment after the commencement of trial unless the party could not have raised the matter before trial despite due diligence. The Court held that the trial had not concluded as only one witness had been cross-examined and the suit was still at the stage of evidence. The Court found that the amendment was necessary for determining the real controversy between the parties and that the plaintiffs had shown due diligence as the need for amendment arose from subsequent events and the defendant's conduct. The Court also noted that no prejudice would be caused to the defendant as the amendment relates to the same cause of action and the defendant could be compensated by costs. The writ petition was dismissed, and the amendment was allowed.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Amendment After Commencement of Trial - The proviso to Order VI Rule 17 CPC bars amendment after trial has commenced unless the party could not have raised the matter before commencement of trial despite due diligence. In the present case, the amendment was sought after cross-examination of one plaintiff's witness but before conclusion of trial. The Court held that the trial had not concluded and the amendment was necessary to determine the real controversy. The Court also found that the plaintiffs had shown due diligence as the need for amendment arose from subsequent events and the defendant's conduct. (Paras 1-10) B) Specific Performance - Amendment to Include Relief of Specific Performance - The original suit was for declaration of a concluded conditional contract and injunction. By amendment, the plaintiffs sought to add the relief of specific performance and possession. The Court held that such amendment is permissible as it does not change the nature of the suit and is necessary for complete adjudication. (Paras 2-8) C) Civil Procedure - Prejudice to Opposite Party - The Court held that no prejudice would be caused to the defendant as the amendment relates to the same cause of action and the defendant can be compensated by costs. The defendant had already cross-examined the plaintiff's witness on the original pleadings, but the amendment does not introduce a new case. (Paras 9-10)
Issue of Consideration
Whether the amendment application filed after commencement of trial (after cross-examination of one plaintiff's witness) is barred by the proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908, and whether the amendment is necessary for determining the real controversy between the parties.
Final Decision
The writ petition is dismissed. The order dated 28-11-2012 passed by the learned Civil Judge, Senior Division, Pune, allowing Exhibit 68 – the application for amendment under Order VI, Rule 17 CPC, is upheld.
Law Points
- Amendment of pleadings
- Order VI Rule 17 CPC
- Proviso to Order VI Rule 17
- Trial commencement
- Cross-examination
- Real controversy
- Due diligence
- Prejudice
