Case Note & Summary
The petitioner challenged the order dated 07.09.2015 passed by the trial court allowing the respondent's application for amendment of written statement at Exh. 32. The amendment application was entertained and decided after the commencement of trial. The High Court noted that under the proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908, no application for amendment after the trial has commenced shall be allowed unless the court comes to the conclusion that despite due diligence, the party could not have raised the matter before the commencement of trial. Since the trial court failed to record any finding on the aspect of due diligence, the order was held to be without jurisdiction. The High Court allowed the writ petition, quashed the impugned order, and directed the trial court to decide the amendment application afresh after hearing all parties. No order as to costs.
Headnote
A) Civil Procedure - Amendment of Pleadings - Due Diligence - Order VI Rule 17 CPC - The trial court allowed amendment of written statement after commencement of trial without recording any finding on due diligence as required by the proviso to Order VI Rule 17 CPC - Held that such order is without jurisdiction and liable to be quashed - The court directed the trial court to decide the amendment application afresh after hearing all parties (Paras 2-3).
Issue of Consideration
Whether the trial court's order allowing amendment of written statement after commencement of trial is valid without recording a finding of due diligence as required by the proviso to Order VI Rule 17 CPC
Final Decision
Writ petition allowed. Order dated 07.09.2015 passed by the trial court allowing amendment application at Exh. 32 is quashed and set aside. Trial court to decide the application at Exh. 32 afresh after hearing all parties. Rule made absolute. No order as to costs.
Law Points
- Amendment of written statement after commencement of trial requires finding of due diligence under proviso to Order VI Rule 17 CPC
- Failure to record such finding renders order without jurisdiction
Case Details
2017 LawText (BOM) (04) 106
WRIT PETITION NO. 6268 OF 2015
Smt. S.W.Deshpande for Petitioner, Shri J.B.Kasat for Respondent
Syed Amair Hussain s/o. Muzhar Hussain
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Nature of Litigation
Civil writ petition challenging order allowing amendment of written statement after commencement of trial
Remedy Sought
Petitioner sought quashing of trial court order dated 07.09.2015 allowing amendment application at Exh. 32
Filing Reason
Trial court allowed amendment of written statement without recording finding on due diligence as required by proviso to Order VI Rule 17 CPC
Previous Decisions
Trial court passed order dated 07.09.2015 allowing amendment application at Exh. 32
Issues
Whether the trial court's order allowing amendment of written statement after commencement of trial is valid without recording a finding of due diligence under proviso to Order VI Rule 17 CPC
Submissions/Arguments
Petitioner argued that the trial court failed to record finding on due diligence as required by proviso to Order VI Rule 17 CPC, rendering the order without jurisdiction
Ratio Decidendi
Under the proviso to Order VI Rule 17 CPC, no application for amendment after the commencement of trial shall be allowed unless the court records a finding that despite due diligence, the party could not have raised the matter before trial. Failure to record such finding renders the order without jurisdiction.
Judgment Excerpts
Since, no such finding is recorded, the order passed, allowing the application for amendment, is without jurisdiction.
The same is, therefore, liable to be quashed and set aside with liberty to the trial Court to decide the application for amendment afresh.
Procedural History
The trial court entertained and decided the application for amendment of written statement after commencement of trial and passed order dated 07.09.2015 allowing the amendment. The petitioner challenged this order by way of writ petition before the High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Order VI Rule 17
