Case Note & Summary
The petitioner, Syed Shakeel Ahamed, filed a writ petition under Articles 226 and 227 of the Constitution of India challenging an order dated 21.11.2020 passed by the Principal Civil Judge and JMFC, Kolar, in O.S.No.377/2014. By the impugned order, the trial court dismissed I.A.No.XII filed by the petitioner/plaintiff under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908, seeking amendment of the plaint. The petitioner had filed the original suit for declaration and injunction in respect of a vacant site. During the pendency of the suit, defendant No.2 filed a written statement challenging the ownership, identity, and boundaries of the suit property. The petitioner sought to amend the plaint to incorporate these challenges and to clarify the description of the property. The trial court dismissed the application on the grounds that the amendment would change the nature of the suit and that the petitioner had not acted with due diligence. The High Court, after hearing the petitioner's counsel and noting that the respondents had not appeared despite service, held that since the trial had not yet commenced, the amendment could be allowed liberally. The court observed that the amendment did not change the nature of the suit but only clarified the existing pleadings. The court also noted that the plea of lack of due diligence was not sustainable as the amendment was sought based on the written statement of defendant No.2. Accordingly, the High Court allowed the writ petition, set aside the impugned order, and permitted 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 read with Section 151 Code of Civil Procedure, 1908 - Pre-trial Amendment - The petitioner/plaintiff sought to amend the plaint to clarify the description of the suit property and to incorporate the challenge to his title made by defendant No.2. The trial court dismissed the application on the ground that the amendment would change the nature of the suit. The High Court held that since the trial had not commenced, the amendment could be allowed liberally, and the amendment did not change the nature of the suit but only clarified the existing pleadings. The impugned order was set aside and the amendment was allowed subject to payment of costs. (Paras 1-5) B) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 Code of Civil Procedure, 1908 - Due Diligence - The trial court had rejected the amendment on the ground of lack of due diligence. The High Court observed that the amendment was sought before the commencement of trial and the plea of lack of due diligence was not sustainable as the petitioner had explained the need for amendment based on the written statement of defendant No.2. The court allowed the amendment, holding that technicalities should not come in the way of determining the real controversy. (Paras 4-5)
Issue of Consideration
Whether the trial court was justified in dismissing the application for amendment of the plaint under Order VI Rule 17 read with Section 151 CPC, and whether the amendment sought was necessary for the determination of the real controversy between the parties.
Final Decision
The writ petition is allowed. The impugned order dated 21.11.2020 passed by the Principal Civil Judge and JMFC, Kolar, in O.S.No.377/2014 is set aside. I.A.No.XII filed under Order VI Rule 17 read with Section 151 CPC is allowed. The petitioner is directed to carry out the amendment within two weeks from the date of receipt of the order. The petitioner shall pay 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
- no prejudice to opposite party
- due diligence requirement
