Case Note & Summary
The petitioner, original plaintiff in Regular Civil Suit No. 179 of 2009, filed a writ petition challenging the order dated 23 July 2013 passed by the District Court-5, Ahmednagar, which allowed an application for amendment of written statement filed by the respondents (original defendants) at the appellate stage in Regular Civil Appeal No. 445 of 2011. The trial court had decreed the suit in favor of the plaintiff on 21 October 2011. The respondents appealed and during the appeal, filed an application under Order 6 Rule 17 CPC to amend their written statement. The District Court allowed the amendment subject to costs of Rs. 2000 and remanded the matter to the trial court for recasting issues and fresh adjudication. The petitioner argued that the amendment was sought after trial had commenced and the respondents failed to show due diligence as required by the proviso to Order 6 Rule 17 CPC. The High Court examined the impugned order and found that the Appellate Court had accepted that the respondents lacked due diligence but still allowed the amendment without recording the mandatory satisfaction that despite due diligence, the matter could not have been raised before trial. The High Court held that the proviso to Order 6 Rule 17 is a bar to allowing amendment after trial has commenced unless such satisfaction is recorded. Since the Appellate Court failed to do so, the impugned order was set aside. The writ petition was allowed, and the application for amendment was dismissed. The High Court directed the Appellate Court to proceed with the appeal in accordance with law.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order 6 Rule 17 Code of Civil Procedure, 1908 - Due Diligence - The Appellate Court allowed amendment of written statement at the appellate stage without recording that the party could not have raised the matter before trial despite due diligence - The High Court held that the proviso to Order 6 Rule 17 mandates that no application for amendment shall be allowed after trial has commenced unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial - The impugned order was set aside as the Appellate Court failed to record such satisfaction (Paras 5-7).
Issue of Consideration
Whether the District Court was justified in allowing amendment of written statement at the appellate stage under Order 6 Rule 17 CPC without recording satisfaction that the party could not have raised the matter before the commencement of trial despite due diligence.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 23 July 2013, and dismissed the application for amendment of written statement. The Appellate Court was directed to proceed with the appeal in accordance with law.
Law Points
- Amendment of pleadings
- Due diligence
- Order 6 Rule 17 CPC
- Proviso to Order 6 Rule 17
- Appellate stage amendment
- Remand without jurisdiction
Case Details
2013 LawText (BOM) (12) 1
Writ Petition No. 8255 of 2013
Mr. Jiwan J. Patil i/by Mr. V. V. Tarde for the Petitioner, Mr. R. V. Naiknavare for Respondent, Mr. Namdeo Ramchandra Kadu, party in person (Respondent No.1A to 1D)
Mrs. Mandabai Revannath Gade
Mrs. Alka Namdeo Kadu (died through heirs) and others
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Nature of Litigation
Civil writ petition challenging an order allowing amendment of written statement at appellate stage.
Remedy Sought
Petitioner sought to quash the order dated 23 July 2013 passed by the District Court allowing amendment of written statement and remand.
Filing Reason
The petitioner was aggrieved by the District Court's order allowing the respondents to amend their written statement during the appeal, despite lack of due diligence.
Previous Decisions
The trial court (Civil Judge, Junior Division, Rahuri) decreed the suit in favor of the plaintiff on 21 October 2011. The respondents appealed, and during the appeal, they filed an application for amendment of written statement, which was allowed by the District Court on 23 July 2013.
Issues
Whether the Appellate Court could allow amendment of written statement after trial had commenced without recording satisfaction that the party could not have raised the matter before trial despite due diligence.
Submissions/Arguments
Petitioner argued that the respondents lacked due diligence as the proposed amendment was within their knowledge at the time of filing the written statement, and the Appellate Court failed to comply with the proviso to Order 6 Rule 17 CPC.
Respondents contended that the amendment was necessary for proper adjudication and the Appellate Court had discretion to allow it.
Ratio Decidendi
The proviso to Order 6 Rule 17 CPC imposes a bar on allowing amendment after trial has commenced unless the court is satisfied that despite due diligence, the party could not have raised the matter before the commencement of trial. The Appellate Court failed to record such satisfaction and therefore the order allowing amendment was unsustainable.
Judgment Excerpts
The proviso to Order 6 Rule 17 CPC mandates that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
The Appellate Court has not recorded any such satisfaction. Therefore, the impugned order cannot be sustained.
Procedural History
The petitioner filed Regular Civil Suit No. 179 of 2009 which was decreed on 21 October 2011. The respondents appealed in Regular Civil Appeal No. 445 of 2011. During the appeal, respondents filed application Exh. 61 for amendment of written statement. The District Court allowed the amendment on 23 July 2013 and remanded the matter. The petitioner challenged this order by filing Writ Petition No. 8255 of 2013 in the High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Order 6 Rule 17
