Case Note & Summary
The dispute arises out of a partition suit filed by Suman Agarwal (Bindal) against her brothers Dinesh Goyal and others, claiming 1/5th share in a house property originally purchased by their father. The defendant relied on a Will executed by their mother Katoribai bequeathing the property solely to him. The plaintiff filed an application under Order VI Rule 17 CPC seeking to amend the plaint to challenge the genuineness of the Will and to include movable properties. The trial court rejected the application on grounds of delay and lack of due diligence. The High Court allowed the amendment, observing that the trial court had not framed an issue on the Will and that cross-examination had not begun. The Supreme Court upheld the High Court's order, holding that the amendment was necessary to determine the real controversy between the parties and that the proviso to Order VI Rule 17 CPC did not bar the amendment as trial had not effectively commenced. The Court dismissed the appeal, directing the trial court to frame an issue on the genuineness of the Will and proceed expeditiously.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Real Question in Controversy - The court may allow amendment at any stage to determine real questions in controversy between parties; after trial has commenced, amendment can be allowed only if party shows due diligence that matter could not have been raised earlier. (Paras 6-7) B) Civil Procedure - Amendment of Plaint - Challenge to Will - In a partition suit, amendment seeking to challenge the genuineness of a Will and to include movable properties is necessary for complete and effective adjudication of the real controversy between the parties. (Paras 10-11) C) Civil Procedure - Amendment - Delay and Due Diligence - Where cross-examination of plaintiff had not begun, amendment sought before commencement of trial is not barred by proviso to Order VI Rule 17 CPC; mere delay is not a ground to reject amendment if it is necessary for determining real controversy. (Paras 10-11) D) Civil Procedure - High Court's Power under Article 227 - Interference with Trial Court Order - High Court can interfere under Article 227 if trial court adopts hyper-technical approach and refuses amendment that is necessary for complete justice. (Para 10)
Issue of Consideration
Whether the High Court committed an error in allowing the amendment to the plaint filed by the plaintiff under Order VI Rule 17 CPC.
Final Decision
Appeal dismissed. The High Court's order allowing amendment of plaint is upheld. Trial court directed to frame an issue on the genuineness of the Will and proceed with the suit expeditiously.
Law Points
- Amendment of pleadings can be allowed at any stage to determine real controversy
- Provided that after trial commencement
- due diligence must be shown
- Challenge to Will is necessary for complete adjudication of partition suit
- Inclusion of movable properties and challenge to Will do not change nature of suit
- High Court can interfere under Article 227 if trial court adopts hyper-technical approach.
