Case Note & Summary
The petitioner, original plaintiff in Regular Civil Suit No.315 of 2019 pending before the 4th Additional Civil Judge, Bharuch, filed a Special Civil Application under Articles 226 and 227 of the Constitution of India challenging the order dated 13.03.2024 passed by the trial court rejecting the plaintiff's application at Exhibit 46 for amendment of the plaint under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC). The suit was for specific performance of an agreement to sell. The plaintiff sought to amend the plaint to add an alternative relief of damages for breach of contract in case the court finds that specific performance cannot be granted. The trial court rejected the amendment on the ground that it would change the nature of the suit and that the plaintiff had not shown due diligence. The High Court observed that the amendment was sought before the commencement of trial, and therefore the proviso to Order VI Rule 17 CPC requiring due diligence was not applicable. The court further held that adding an alternative relief does not change the nature of the suit as the cause of action remains the same. The court relied on the principle that amendments should be liberally allowed to avoid multiplicity of litigation and to determine the real controversy between the parties. The impugned order was quashed and set aside, and the trial court was directed to allow the amendment application. The court also directed the trial court to permit the plaintiff to lead evidence on the amended pleadings and to expedite the disposal of the suit.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Alternative Relief - The plaintiff sought to amend the plaint to add an alternative relief of damages for breach of contract in a suit for specific performance. The trial court rejected the amendment holding it would change the nature of the suit. The High Court held that adding an alternative relief does not change the nature of the suit as the cause of action remains the same. The amendment was sought before trial commenced, and the test of due diligence is not strictly applicable at the pre-trial stage. The court allowed the amendment, setting aside the impugned order. (Paras 1-11) B) Civil Procedure - Pre-trial Amendment - Order VI Rule 17 CPC - Due Diligence - The proviso to Order VI Rule 17 CPC requiring due diligence applies only after the trial has commenced. Since the amendment was sought before the commencement of trial, the proviso was not attracted. The court held that the trial court erred in applying the due diligence test. (Paras 7-9) C) Civil Procedure - Change in Nature of Suit - Order VI Rule 17 CPC - Alternative Relief - The court held that adding an alternative relief of damages in a suit for specific performance does not change the nature of the suit. The plaintiff is entitled to seek alternative reliefs based on the same cause of action. The trial court's finding that the amendment would change the nature of the suit was erroneous. (Paras 8-10)
Issue of Consideration
Whether the trial court erred in rejecting the plaintiff's application for amendment of the plaint under Order VI Rule 17 of the CPC, seeking to add an alternative relief of damages for breach of contract, on the ground that it would change the nature of the suit.
Final Decision
The High Court allowed the petition, quashed and set aside the impugned order dated 13.03.2024 passed by the learned 4th Additional Civil Judge, Bharuch, and directed the trial court to allow the amendment application at Exhibit 46 in Regular Civil Suit No.315 of 2019. The trial court was further directed to permit the parties to lead evidence on the amended pleadings and to expedite the disposal of the suit.
Law Points
- Amendment of pleadings
- Order VI Rule 17 CPC
- Alternative relief
- Change in nature of suit
- Due diligence
- Pre-trial amendment
- Liberal approach
