Case Note & Summary
The matter arose from a suit for eviction and mesne profits filed by the landlord against the tenant in the Small Causes Court at Mumbai. The landlord claimed reasonable requirement of the suit premises and terminated the tenancy by notice dated 23.9.2003. The tenant filed a written statement on 12.1.2004, and issues were framed on 15.3.2004. The plaintiff's evidence was recorded, and during the recording of the defendant's evidence, on 20.10.2005, the defendant applied to amend the written statement under Order 6 Rule 17 of the Code of Civil Procedure, 1908. The proposed amendment sought to add a plea that the defendant had paid municipal taxes for the suit premises even after the notice to quit, which amounted to payment of rent and acceptance thereof by the landlord without objection, thereby waiving the notice and rendering the suit not maintainable. The defendant explained that the payment of taxes was handled by its administration department, while legal instructions were given by the legal department, and due to lack of inter-departmental communication, the plea could not be raised earlier. The trial court rejected the application on 4.3.2006, holding that the trial had commenced and the defendant failed to demonstrate due diligence as required by the proviso to Order 6 Rule 17 inserted by the Civil Procedure Code (Amendment) Act, 2002. The defendant then filed a writ petition under Article 227 of the Constitution of India challenging that order. The main legal issue was whether the trial court erred in refusing the amendment despite the proviso and whether the defendant had shown due diligence. The defendant argued that the proviso should not bar amendments necessary for determining the real questions in controversy and that the pre-2002 precedents allowing liberal amendment still applied. The landlord contended that the proviso was mandatory and that the defendant's knowledge of tax payments precluded any claim of due diligence; the application was a delaying tactic. The High Court examined the legislative intent behind the 2002 amendment, noting that the proviso was designed to curb frivolous post-trial amendments and to expedite disposal of suits. It held that once trial commences, an amendment cannot be allowed unless the party proves that, despite due diligence, the matter could not have been raised earlier. The court found that the defendant, a large corporation, had knowledge of the tax payments all along and the alleged ignorance between departments did not constitute due diligence. The trial court's decision was not perverse or vitiated by any jurisdictional error. Consequently, the writ petition was dismissed, and the trial court's order rejecting the amendment was upheld.
Headnote
A) Civil Procedure - Amendment of Pleadings - Limitation After Commencement of Trial - Code of Civil Procedure, 1908, Order 6 Rule 17 proviso - The proviso inserted by the Civil Procedure Code (Amendment) Act, 2002 requires that after trial has commenced, an amendment shall not be allowed unless the court concludes that in spite of due diligence, the party could not have raised the matter before trial. The object is to prevent frivolous applications aimed at delaying trial. This provision was upheld as constitutional in Salem Advocate Bar Association T.N. v. Union of India. Held that the trial court correctly applied the proviso and rejected the amendment application as the defendants failed to show due diligence. (Paras 11-12, 16) B) Civil Procedure - Amendment of Pleadings - Due Diligence Requirement - Code of Civil Procedure, 1908, Order 6 Rule 17 proviso - To satisfy the requirement of 'due diligence', the applicant must provide a cogent explanation showing that despite all efforts, the matter could not have been raised earlier. The fact that the defendant had separate departments (legal and administration) and alleged lack of coordination does not amount to due diligence as the payment of municipal taxes was within the defendant's knowledge. Held that the defendants did not establish due diligence and the amendment was rightly refused. (Paras 16-18) C) Landlord and Tenant - Waiver of Notice to Quit - Payment of Municipal Taxes as Rent - The payment of municipal taxes by a tenant may constitute payment of rent, and if accepted by the landlord without objection after service of notice to quit, it could amount to waiver of such notice. This issue, however, could be raised only if the amendment was allowed, which failed for lack of due diligence. Held that since the amendment was not permitted, the plea of waiver could not be considered. (Paras 4, 15) D) Constitutional Law - Writ Jurisdiction - Scope of Article 227 - The High Court under Article 227 exercises limited supervisory jurisdiction; it does not substitute its own views for that of the trial court unless there is a patent jurisdictional error or perversity. The trial court's finding that the defendants failed to show due diligence was a possible view, and thus not interfered with. Held that the writ petition was dismissed and the trial court's order upheld. (Paras 17-18)
Issue of Consideration
Whether in the face of the proviso to Rule 17 of Order 6 of CPC, if the trial has commenced, the amendment could be allowed unless the party seeking an amendment satisfies the court that in spite of due diligence, it could not have raised the matter before the commencement of trial and whether the amendment sought in the present case deserves to be allowed by applying the said test
Final Decision
The writ petition is dismissed. The High Court upheld the order of the Small Causes Court, holding that the defendants failed to satisfy the due diligence requirement under Order 6 Rule 17 CPC, and thus the amendment after commencement of trial was rightly rejected. No interference was warranted under Article 227.
Law Points
- Amendment after commencement of trial not allowed unless party shows due diligence
- Payment of municipal taxes by tenant may constitute waiver of notice to quit
- Writ jurisdiction under Article 227 limited to jurisdictional errors
- Proviso to Order 6 Rule 17 aims to prevent frivolous applications delaying trial
