Case Note & Summary
The petitioner/plaintiff filed a suit for declaration and permanent injunction in respect of suit schedule property, alleging that the defendant/respondent had encroached upon 20 guntas on the western side. After evidence was completed, a Court Commissioner was appointed at the instance of the plaintiff to conduct local inspection. The Commissioner's report indicated that the encroachment was to the extent of 1 acre 20 guntas, not 20 guntas as originally pleaded. Based on this report, the plaintiff filed an application under Order VI Rule 17 CPC seeking to amend the plaint to incorporate the correct extent of encroachment and to include an alternative relief for possession. The trial court rejected the application on the ground that the amendment was sought after the commencement of trial and that the plaintiff had not shown due diligence. The High Court allowed the writ petition, setting aside the trial court's order. The court held that the amendment was based on the Commissioner's report which came into existence after evidence was led, and therefore the plaintiff could not have raised the matter earlier despite due diligence. The court further held that the amendment did not change the nature of the suit or cause any prejudice to the defendant that could not be compensated by costs. The application for amendment was allowed, and the trial court was directed to permit the plaintiff to amend the plaint and proceed with the suit.
Headnote
A) Civil Procedure - Amendment of Plaint - Order VI Rule 17 CPC - Liberal Approach - The court held that amendments should be liberally allowed to determine the real controversy between the parties, especially when the amendment does not change the nature of the suit or cause prejudice to the opposite party. The trial court's rejection of the amendment was set aside. (Paras 5-7) B) Civil Procedure - Amendment After Commencement of Trial - Order VI Rule 17 CPC - Due Diligence - The proviso to Order VI Rule 17 CPC requires that after the commencement of trial, amendments shall not be allowed unless the court is satisfied that despite due diligence, the party could not have raised the matter before the commencement of trial. The court found that the amendment was based on the Court Commissioner's report which was submitted after evidence was led, and thus the petitioner could not have raised it earlier. (Paras 5-7) C) Civil Procedure - Amendment of Plaint - Change in Nature of Suit - The proposed amendment sought to incorporate an alternative relief based on the Court Commissioner's report that the encroachment was 1 acre 20 guntas instead of 20 guntas as originally pleaded. The court held that this did not change the nature of the suit as the suit remained one for declaration and injunction. (Paras 5-7)
Issue of Consideration
Whether the trial court was justified in rejecting the application for amendment of the plaint filed by the petitioner/plaintiff under Order VI Rule 17 CPC after the commencement of trial, in light of the Court Commissioner's report indicating a different extent of encroachment.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 18.11.2015 passed by the Civil Judge and JMFC, Turuvekere in O.S.No.128/2011, and allowed I.A.No.9 filed by the petitioner/plaintiff under Order VI Rule 17 CPC. The trial court was directed to permit the petitioner to amend the plaint and proceed with the suit in accordance with law.
Law Points
- Amendment of pleadings
- Order VI Rule 17 CPC
- Liberal approach to amendment
- Pre-trial amendment
- Post-commencement of trial amendment
- Due diligence
- Change in nature of suit
- Prejudice to opposite party
