Case Note & Summary
The petitioners, Antonio Braganza and Aldila Braganza, filed a writ petition challenging the order dated 22.07.2015 passed by the learned Adhoc Senior Civil Judge at Mapusa, which rejected their application for amendment of the plaint under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (CPC). The petitioners had originally filed a suit for declaration and injunction against the respondents, Antoneto John D'Souza and Bernardeth D'Souza. After the suit was disposed of, several other writ petitions were filed between the same parties, one of which resulted in the restoration of the suit with a direction for expeditious disposal. The petitioners then sought to amend the plaint to incorporate certain facts that had arisen after the filing of the suit. The trial court rejected the amendment application on the ground that the petitioners had not shown due diligence. The High Court, after hearing both sides, held that the trial court's order was arbitrary and perverse. The court noted that the test of due diligence must be applied liberally, especially when the amendment is sought before the trial has commenced and no prejudice is caused to the opposite party. The court observed that the petitioners had pursued their case with reasonable care, caution, and effort, as evidenced by the restoration of the suit and other proceedings. The court further emphasized that amendments at a pre-trial stage should be freely allowed to avoid multiplicity of litigation and to determine the real questions in controversy between the parties. The High Court set aside the impugned order and allowed the amendment application, directing the trial court to permit the amendment and proceed with the suit expeditiously.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order 6 Rule 17 CPC - Due Diligence - The court held that the test of due diligence must be applied liberally, especially when the amendment is sought before the trial has commenced and no prejudice is caused to the opposite party. The petitioners had pursued their case with reasonable care, caution, and effort, as evidenced by the restoration of the suit and other proceedings. The trial court's rejection was arbitrary and perverse. (Paras 2-5) B) Civil Procedure - Amendment of Pleadings - Order 6 Rule 17 CPC - Pre-trial Stage - The court emphasized that amendments at a pre-trial stage should be freely allowed to avoid multiplicity of litigation and to determine the real questions in controversy between the parties. The amendment sought was necessary for the proper adjudication of the suit. (Paras 5-6)
Issue of Consideration
Whether the trial court erred in rejecting the application for amendment of the plaint under Order 6 Rule 17 CPC on the ground of lack of due diligence.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 22.07.2015, and directed the trial court to permit the amendment of the plaint and proceed with the suit expeditiously.
Law Points
- Amendment of pleadings
- Order 6 Rule 17 CPC
- due diligence
- liberal approach
- prejudice to opposite party
- pre-trial stage
