Case Note & Summary
The petitioners, original defendants in Regular Civil Suit No. 20/2010/A, filed an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (CPC) seeking to amend their written statement. The proposed amendments sought to introduce clarifications to elaborate their defence. The petitioners contended that these pleadings were necessary for deciding the real controversy and could not have been incorporated earlier despite due diligence, as their previous counsel had opined that the basic facts were already stated. They also stated that they relied on the advocate's expertise and did not press for inclusion. The respondents, original plaintiffs, opposed the application, arguing that since trial had commenced, the proviso to Order 6 Rule 17 CPC required the petitioners to show that despite due diligence, the amendment could not have been sought earlier, which they failed to do. The trial court rejected the application. The High Court, after hearing both sides, allowed the writ petition, setting aside the trial court's order. The court held that the explanation given by the petitioners regarding their reliance on the earlier counsel's opinion constituted sufficient cause and satisfied the due diligence requirement. The court emphasized that amendments should be liberally allowed to decide the real controversy and avoid multiplicity of proceedings, and that no irreparable prejudice would be caused to the respondents as they could be compensated by costs. The court directed the trial court to allow the amendment subject to payment of costs of Rs. 5,000 to the respondents.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order 6 Rule 17 CPC - Due Diligence - The court held that the proviso to Order 6 Rule 17 CPC requires the party seeking amendment after trial has commenced to show that despite due diligence, the amendment could not have been sought earlier. The court found that the petitioners had explained that their earlier counsel omitted the proposed pleadings, and they relied on his expertise, which constituted sufficient cause. The amendment was necessary to decide the real controversy. (Paras 2-10)
B) Civil Procedure - Amendment of Pleadings - Liberal Approach - The court reiterated that amendments to pleadings should be liberally allowed to avoid multiplicity of proceedings and to decide the real dispute between parties, unless it causes irreparable prejudice to the opposite party. (Paras 8-10)
Issue of Consideration
Whether the trial court erred in rejecting the application for amendment of written statement filed by the defendants under Order 6 Rule 17 CPC after commencement of trial, and whether the proviso requiring 'due diligence' was satisfied.
Final Decision
The High Court allowed the writ petition, set aside the trial court's order dated 2.9.2013, and directed the trial court to allow the amendment application subject to payment of costs of Rs. 5,000 to the respondents.
Law Points
- Amendment of pleadings
- due diligence
- liberal approach
- Order 6 Rule 17 CPC
- commencement of trial
- prejudice
- real controversy
Case Details
2014 LawText (BOM) (04) 173
Writ Petition No. 625 of 2013
Mr. V. R. Tamba and Mr. D. Zaveri for petitioners; Mr. V. A. Lawande and Mr. D. Vernekar for respondents
Mr. Conception Fernandes and Mrs. Fatima Fernandes
Mrs. Tasneem Shaikh, Shri Abdul Salim Shaikh, and Vasco Citicentre Co-operative Housing Society Ltd.
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Nature of Litigation
Civil writ petition challenging the order rejecting amendment of written statement in a regular civil suit.
Remedy Sought
The petitioners (original defendants) sought to amend their written statement to introduce clarifications elaborating their defence.
Filing Reason
The trial court rejected the amendment application on the ground that the proviso to Order 6 Rule 17 CPC was not satisfied as the petitioners failed to show due diligence.
Previous Decisions
The trial court passed order dated 2.9.2013 rejecting the application at Exh.84 filed under Order 6 Rule 17 CPC.
Issues
Whether the trial court erred in rejecting the amendment application under Order 6 Rule 17 CPC after commencement of trial.
Whether the petitioners satisfied the due diligence requirement under the proviso to Order 6 Rule 17 CPC.
Submissions/Arguments
Petitioners: The proposed amendments were necessary to decide the real controversy and could not have been included earlier due to reliance on previous counsel's opinion, which constitutes due diligence.
Respondents: The trial had commenced and the petitioners failed to show that despite due diligence, the amendment could not have been sought earlier; hence the application was rightly rejected.
Ratio Decidendi
The proviso to Order 6 Rule 17 CPC requires the party seeking amendment after trial has commenced to show that despite due diligence, the amendment could not have been sought earlier. The explanation that the party relied on the earlier counsel's opinion and did not press for inclusion constitutes sufficient cause and satisfies the due diligence requirement. Amendments should be liberally allowed to decide the real controversy and avoid multiplicity of proceedings, unless irreparable prejudice is caused to the opposite party.
Judgment Excerpts
The proviso to Rule 17 of Order 6 CPC requires that after the trial has commenced, the court shall not allow an amendment unless it comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
The explanation given by the petitioners that they relied on the opinion of their earlier counsel and did not press for inclusion of these pleadings is a sufficient cause and satisfies the requirement of due diligence.
Procedural History
The petitioners filed an application (Exh.84) under Order 6 Rule 17 CPC in Regular Civil Suit No. 20/2010/A before the Civil Judge, Senior Division, Vasco-da-Gama. The trial court rejected the application on 2.9.2013. The petitioners then filed the present writ petition before the High Court of Bombay at Goa challenging that order.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 6 Rule 17
