Case Note & Summary
The petitioners, who were defendants in Regular Civil Suit No. 242/2007, filed an application (Exh. 42) for amendment of their written statement. The suit was filed by the respondent-plaintiff for possession and injunction. The defendants initially filed a written statement on 27.07.2007 denying the plaintiff's title and claiming ownership. Issues were framed on 20.01.2012, and the plaintiff's examination-in-chief was recorded on 10.07.2012. On 06.09.2012, before cross-examination of the plaintiff, the defendants sought to amend the written statement to incorporate an alternative plea of ownership by adverse possession. The trial court rejected the application on the ground that it was filed after commencement of trial and the defendants failed to show due diligence as required by the proviso to Order 6 Rule 17 CPC. The High Court, in the writ petition, examined the scope of the proviso and held that the amendment was necessary to determine the real controversy between the parties. The court noted that the amendment did not change the nature of the suit and that the plea of adverse possession was an alternative to the existing defence. The court further held that the requirement of 'due diligence' should not be applied mechanically, and that the trial court had erred in rejecting the application solely on the ground of delay. The High Court allowed the petition, set aside the impugned order, and permitted the amendment subject to payment of costs of Rs. 1,000 to the plaintiff.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order 6 Rule 17 CPC - Commencement of Trial - Due Diligence - The trial court rejected the amendment application filed after commencement of trial, holding that the defendants failed to explain why the plea was not raised earlier. The High Court set aside the order, holding that the amendment sought to incorporate an alternative plea of ownership based on adverse possession, which did not change the nature of the suit. The court held that the requirement of 'due diligence' under the proviso to Order 6 Rule 17 CPC must be liberally construed, and mere inadvertence or delay is not fatal if the amendment is necessary for determining the real controversy. (Paras 2-5) B) Civil Procedure - Amendment of Written Statement - Alternative Plea - Adverse Possession - The proposed amendment sought to add a plea that the defendants had become owners by adverse possession. The High Court held that such an alternative plea is permissible and does not introduce a new case. The court emphasized that amendments should be allowed to avoid multiplicity of litigation and to decide the real issues between the parties. (Paras 3-5)
Issue of Consideration
Whether the trial court was justified in rejecting the application for amendment of written statement filed after commencement of trial on the ground of lack of due diligence.
Final Decision
The High Court allowed the writ petition, set aside the order dated 31.10.2012 passed by the 26th Joint Civil Judge, Junior Division, Nagpur, and allowed the application Exh. 42 for amendment of the written statement subject to payment of costs of Rs. 1,000 to the plaintiff.
Law Points
- Amendment of pleadings
- Order 6 Rule 17 CPC
- commencement of trial
- due diligence
- liberal approach
- alternative plea
- adverse possession
