Case Note & Summary
The petitioners, original plaintiffs, filed a suit for specific performance of contract dated 02.03.2003 against the respondents. During the trial, after the affidavit in lieu of examination-in-chief of respondent no.5 was filed on 02.05.2009, respondent nos. 5 and 6 (original defendant nos. 5 and 6) filed an application (Exh. 154) for amendment of their written statement. The trial court allowed the amendment, holding that the mistake of their earlier advocate in not making sufficient and elaborate pleadings should not prejudice the defendants, and that the amendment was explanatory and necessary for deciding the real controversy. The petitioners challenged this order in the High Court. The High Court, after hearing the parties, dismissed the petition, upholding the trial court's order. The court noted that the amendment was sought to clarify the existing pleadings and did not introduce a new case. The court also observed that the trial court had considered the aspect of due diligence and had rightly exercised its discretion. The petition was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Due Diligence - Mistake of Counsel - The trial court allowed amendment of written statement after commencement of trial, holding that the mistake of the earlier advocate in not making sufficient pleadings should not prejudice the defendants. The court found that the amendment was explanatory and necessary for deciding the real controversy. (Paras 2-4)
B) Specific Performance - Contract - Suit for Specific Performance - Amendment of Written Statement - The suit was for specific performance of a contract dated 02.03.2003. The amendment sought by defendant nos. 5 and 6 was allowed by the trial court, which was upheld by the High Court. (Paras 3-4)
Issue of Consideration
Whether the trial court was justified in allowing amendment of written statement after commencement of trial, despite the plea of lack of due diligence, on the ground that the mistake of counsel should not prejudice the defendant's right to put forth a defence.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order allowing amendment of written statement. No order as to costs.
Law Points
- Amendment of pleadings
- due diligence
- mistake of counsel
- prejudice to opposite party
- fair trial
- Order VI Rule 17 CPC
Case Details
2014 LawText (BOM) (02) 162
Writ Petition No. 1322/2013
Shri S.A. Kalbande for petitioners, Shri S.U. Nemade for respondent nos. 1 to 4, Shri A.S. Jaiswal (Senior Counsel) assisted by Shri Sharma for respondent nos. 5 and 6
Smt. Jayashree Subhash Kalbande and Shri Dnyaneshwar Arjunrao Kalbande
Shri Bhaurao Nagorao Derkar, Shri Dnyaneshwar Nagorao Derkar, Shri Kawadu Nagorao Derkar, Smt. Gangubai Nagorao Derkar, Shri Meghraj Keshaorao Tajne, and Om Shri Sai Sevabhavi Cooperative Housing Society Ltd.
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Nature of Litigation
Civil writ petition challenging order allowing amendment of written statement in a suit for specific performance of contract.
Remedy Sought
Petitioners sought to quash the trial court's order dated 18.01.2013 allowing amendment of written statement filed by defendant nos. 5 and 6.
Filing Reason
The petitioners contended that the amendment was sought after commencement of trial without due diligence and that the trial court erred in allowing it.
Previous Decisions
The trial court allowed the amendment application (Exh. 154) on 18.01.2013.
Issues
Whether the trial court was justified in allowing amendment of written statement after commencement of trial on the ground of mistake of counsel?
Whether the amendment was necessary for deciding the real controversy?
Submissions/Arguments
Petitioners argued that the amendment was sought after commencement of trial and without due diligence, and that the trial court erred in allowing it.
Respondent nos. 5 and 6 argued that the amendment was explanatory and necessary for fair trial, and that the mistake of their earlier advocate should not prejudice them.
Ratio Decidendi
The mistake of counsel should not prejudice the party's right to put forth a defence. An amendment that is explanatory and necessary for deciding the real controversy can be allowed even after commencement of trial, provided no prejudice is caused to the opposite party that cannot be compensated by costs.
Judgment Excerpts
It has been held that due to the mistake of counsel, the parties cannot be made to suffer or denied the fair trial of the suit by putting forth their defence.
It has also been held that the amendment proposed is necessary for deciding the real controversy involved in the suit.
Procedural History
The suit (Regular Civil Suit No. 86/2012) was filed for specific performance of contract. During trial, after affidavit in lieu of examination-in-chief of respondent no.5 was filed, defendant nos. 5 and 6 filed an application for amendment of written statement. The trial court allowed the application on 18.01.2013. The petitioners challenged this order in the High Court by filing Writ Petition No. 1322/2013, which was dismissed on 18.02.2014.
Acts & Sections
- Code of Civil Procedure, 1908: Order VI Rule 17
