Case Note & Summary
The petitioner, Chandrashekhar Pandurang Tumsare, was the defendant in a civil suit. He filed an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) seeking permission to amend his written statement. The trial court rejected that application. The petitioner challenged that order by way of a writ petition before the Bombay High Court, Nagpur Bench. The High Court noted that it was undisputed that the trial of the civil suit had already commenced. The application for amendment did not contain any averment that despite due diligence, the petitioner could not bring the proposed facts on record before the commencement of trial. The proviso to Order VI Rule 17 CPC states that no application for amendment shall be allowed after the trial has commenced unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The learned trial judge, therefore, had no jurisdiction to allow the amendment in the absence of such a plea. The petitioner's counsel argued that the Maharashtra Amendment of 1983 to Order VI Rule 17 CPC governs trials in Maharashtra and that the proviso does not apply. However, the High Court rejected this argument, holding that the Maharashtra Amendment does not remove the requirement of due diligence. The court relied on the Supreme Court judgment in Vidyabai and others vs. Padmalatha and another, reported in 2009(4) Mh.L.J. 30. Consequently, the High Court dismissed the writ petition, upholding the trial court's order.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Proviso - Due Diligence - The petitioner-defendant sought to amend the written statement after trial had commenced. The application did not state that despite due diligence, the facts could not be brought on record earlier. The trial court rejected the application. The High Court held that the proviso to Order VI Rule 17 CPC creates a bar against allowing amendment after trial has commenced unless the party shows due diligence. The Maharashtra Amendment of 1983 does not dispense with this requirement. The petition was dismissed. (Paras 2-4)
Issue of Consideration
Whether the trial court was justified in rejecting the application for amendment of written statement filed after commencement of trial without showing due diligence, in view of the proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908.
Final Decision
The writ petition is dismissed. The order passed by the trial Court rejecting the application for amendment is upheld.
Law Points
- Amendment of pleadings after commencement of trial is barred by proviso to Order VI Rule 17 CPC unless the party shows that despite due diligence
- the matter could not be raised before trial
- Maharashtra Amendment of 1983 does not remove the requirement of due diligence
