Case Note & Summary
The petitioner, Shamrao Balwantrao Kedar, filed a writ petition challenging the order dated 8-10-2014 passed by the Learned District Judge-4, Nashik, rejecting his application (Exhibit 36) seeking amendment of the appeal memo in Civil Appeal No.222 of 2012. The civil appeal was directed against the decree dismissing Special Civil Suit No.395 of 1989 for specific performance of contract. The suit was dismissed, and the petitioner filed First Appeal No.765 of 2006 in the High Court, which was admitted on 12-4-2006 with interim relief granted on 17-11-2006. However, the first appeal was dismissed for default due to non-compliance with the order regarding filing of the paper book. Subsequently, the petitioner filed Civil Appeal No.222 of 2012 before the District Court, Nashik. During the pendency of that appeal, the petitioner sought to amend the appeal memo to incorporate certain facts and grounds. The District Judge rejected the amendment application on the ground of delay. The High Court, in its analysis, observed that the amendment sought was pre-trial and necessary for determining the real controversy between the parties. The court held that amendments should be liberally allowed before trial, and mere delay is not a ground for rejection unless it causes prejudice to the other side. The court noted that the respondents did not demonstrate any prejudice that could not be compensated by costs. Accordingly, the High Court allowed the writ petition, set aside the impugned order, and permitted the petitioner to carry out the amendment subject to payment of costs of Rs. 5,000 to the respondents.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 of Code of Civil Procedure, 1908 - Pre-trial amendment - The court held that amendment of pleadings should be liberally allowed before trial to determine real controversy, and rejection on ground of delay is not justified if no prejudice is caused to the other side. (Paras 5-7)
Issue of Consideration
Whether the District Judge erred in rejecting the application for amendment of the appeal memo in a civil appeal arising from a specific performance suit, and whether the amendment sought was necessary for determination of the real controversy.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 8-10-2014, and permitted the petitioner to carry out the amendment in the appeal memo subject to payment of costs of Rs. 5,000 to the respondents.
Law Points
- Amendment of pleadings
- Order VI Rule 17 CPC
- Liberal approach to amendment
- Pre-trial amendment
- Delay not fatal if no prejudice
Case Details
2015 LawText (BOM) (02) 200
Writ Petition No. 23 of 2015
Mr. Suhas Oak i/b Mr. Sham Walve for the Petitioner, Mrs. Pratibha Nachankar a/w Mr. Ramesh DaibeyPatil i/b Ajay Misar & Co. for the Respondent Nos.1, 7 to 9.
Suman Balu Thorat and Others
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Nature of Litigation
Writ petition challenging rejection of amendment application in a civil appeal arising from a suit for specific performance of contract.
Remedy Sought
Petitioner sought to amend the appeal memo in Civil Appeal No.222 of 2012.
Filing Reason
The District Judge rejected the amendment application on the ground of delay.
Previous Decisions
The trial court dismissed Special Civil Suit No.395 of 1989. First Appeal No.765 of 2006 was admitted by the High Court but later dismissed for default. Civil Appeal No.222 of 2012 was filed before the District Court.
Issues
Whether the District Judge erred in rejecting the amendment application on the ground of delay.
Whether the amendment sought was necessary for determination of the real controversy.
Submissions/Arguments
Petitioner argued that the amendment was pre-trial and necessary for determining the real controversy, and no prejudice would be caused to the respondents.
Respondents opposed the amendment on the ground of delay.
Ratio Decidendi
Amendment of pleadings under Order VI Rule 17 CPC should be liberally allowed before trial to determine the real controversy between the parties. Mere delay is not a ground for rejection unless it causes prejudice to the other side, which can be compensated by costs.
Judgment Excerpts
The Writ Jurisdiction of this Court is invoked against the order dated 8-10-2014, passed by the Learned District Judge-4, Nashik, by which order, the application Exhibit 36 seeking amendment of the Appeal Memo in Civil Appeal No.222 of 2012, came to be rejected.
The amendment sought is pre-trial and is necessary for determination of the real controversy between the parties.
The respondents have not been able to demonstrate any prejudice that would be caused to them which cannot be compensated by costs.
Procedural History
Special Civil Suit No.395 of 1989 for specific performance was dismissed. First Appeal No.765 of 2006 was filed in the High Court, admitted on 12-4-2006, interim relief granted on 17-11-2006, but later dismissed for default. Civil Appeal No.222 of 2012 was filed before the District Court, Nashik. During its pendency, petitioner filed amendment application (Exhibit 36) which was rejected on 8-10-2014. Petitioner then filed Writ Petition No.23 of 2015 in the High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Order VI Rule 17
