Case Note & Summary
The petitioner, Smt. Hemalatha, filed a writ petition under Article 227 of the Constitution of India challenging the order dated 08.08.2018 passed by the City Civil Judge, Bengaluru, in O.S. No.4739/2014, whereby her application I.A.No.7 under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) seeking amendment of the plaint was rejected. The suit was filed in 2014 for partition and separate possession of suit schedule properties. The petitioner sought to amend the plaint to include an alternative prayer that if partition by metes and bounds is not possible, she may be awarded the sale proceeds of the property. The trial court rejected the application on the ground that the amendment was sought after four years and the petitioner had not shown due diligence. The High Court examined the provisions of Order VI Rule 17 CPC and its proviso, which restricts amendments after the commencement of trial unless the court is satisfied that despite due diligence the party could not have raised the matter earlier. The court noted that the trial had not commenced in the suit, and therefore the proviso was not applicable. The court further held that the amendment did not change the nature of the suit and was necessary for effective adjudication of the dispute. The court observed that allowing the amendment would avoid multiplicity of proceedings and no prejudice would be caused to the defendants as they would have an opportunity to file an additional written statement. The impugned order was quashed and the amendment application was allowed. The writ petition was disposed of with a direction to the trial court to permit the petitioner to carry out the amendment and proceed with the suit in accordance with law.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Alternative Relief - The petitioner sought to amend the plaint to include an alternative prayer for sale proceeds in a partition suit. The trial court rejected the application on the ground of delay and lack of due diligence. The High Court held that the amendment did not change the nature of the suit and was necessary for effective adjudication. The court observed that the amendment was sought before the commencement of trial and no prejudice would be caused to the defendants. The impugned order was quashed and the amendment was allowed. (Paras 1-10) B) Civil Procedure - Due Diligence - Order VI Rule 17 CPC - The trial court had rejected the amendment application citing lack of due diligence as the suit was filed in 2014 and the amendment was sought in 2018. The High Court held that the requirement of due diligence under the proviso to Order VI Rule 17 CPC applies only after the commencement of trial. Since trial had not commenced, the proviso was not attracted. The court further noted that the amendment was necessary to avoid multiplicity of proceedings. (Paras 5-9)
Issue of Consideration
Whether the trial court was justified in rejecting the application for amendment of the plaint seeking an alternative relief of sale proceeds, on the ground of delay and lack of due diligence.
Final Decision
The writ petition is allowed. The impugned order dated 08.08.2018 passed by the City Civil Judge, Bengaluru, on I.A.No.7 in O.S.No.4739/2014 is quashed. The petitioner is permitted to carry out the amendment as sought in I.A.No.7. The trial court is directed to permit the petitioner to carry out the amendment and proceed with the suit in accordance with law.
Law Points
- Amendment of pleadings
- Alternative relief
- Order VI Rule 17 CPC
- Prejudice
- Delay
- Due diligence
