Case Note & Summary
The petitioners, who were defendant nos. 2 and 3 in a suit before the Small Causes Court, Pune, filed a writ petition under Article 227 of the Constitution of India challenging the rejection of their application for amendment of the written statement. The suit, being Civil Suit No. 371 of 2013, was filed by the respondent no. 1 (plaintiff) on 22nd November 2013. The petitioners filed their written statement on 21st August 2014. Issues were framed on 9th December 2015, and the plaintiff filed an affidavit of evidence on 22nd January 2016. Thereafter, the matter was adjourned for cross-examination. On 19th July 2016, the petitioners filed an application (Exhibit-63) seeking amendment of the written statement. The trial court rejected the application on 29th August 2016, and the revisional court (Adhoc District Judge-1, Pune) confirmed that order on 5th November 2016. Both courts held that since the amendment was sought after commencement of trial, the proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) applied, and the petitioners failed to show that the amendment could not have been raised earlier despite due diligence. The High Court, however, allowed the petition. It observed that the trial had not yet commenced in the sense that evidence was still being led and the case was at the stage of cross-examination. The court noted that the proposed amendments were clarificatory and necessary to decide the real controversy between the parties. The court held that the petitioners had shown due diligence because the need for amendment arose from the plaintiff's evidence. The court also noted that no prejudice would be caused to the plaintiff that could not be compensated by costs. Accordingly, the High Court set aside the impugned orders and allowed the amendment application, subject to payment of costs of Rs. 5,000 to the plaintiff.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Due Diligence - The amendment application was filed after commencement of trial, thus the proviso to Order VI Rule 17 CPC applied, requiring the defendants to show that the amendment could not have been raised before trial despite due diligence. The court held that the amendment was necessary to decide the real controversy and that the defendants had shown due diligence as the need for amendment arose from the plaintiff's evidence. The amendment did not cause prejudice to the plaintiff. (Paras 1-10)
B) Civil Procedure - Amendment of Written Statement - Prejudice - The court found that the proposed amendments were clarificatory in nature and did not change the nature of the defence. The plaintiff could be compensated by costs. The trial court and revisional court erred in rejecting the amendment solely on the ground of delay without considering the merits. (Paras 5-10)
Issue of Consideration
Whether the amendment of written statement sought after commencement of trial should be allowed when the defendants failed to show that the amendment could not have been raised earlier despite due diligence.
Final Decision
The High Court allowed the writ petition, set aside the impugned orders, and allowed the amendment application (Exhibit-63) subject to payment of costs of Rs. 5,000 to the plaintiff.
Law Points
- Amendment of pleadings
- Order VI Rule 17 CPC
- due diligence
- commencement of trial
- liberal approach to amendment
- prejudice to opposite party
Case Details
2017 LawText (BOM) (06) 9
Writ Petition No. 365 of 2017
Mr. R. V. Govilkar i/b Mr. Mihir Govilkar, for the Petitioners; Mr. S. G. Deshmukh a/w Mr. Rayrikar Sanjay Dhundiraj, for Respondent No.1
Prabhakar Sadashiv Gokhale and Another
Ramesh Shankar Ladkat and Others
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Nature of Litigation
Civil writ petition under Article 227 of the Constitution of India challenging the rejection of an amendment application in a suit pending before the Small Causes Court.
Remedy Sought
Quashing and setting aside of the judgment and order dated 5th November 2016 passed by the Adhoc District Judge-1, Pune, and the order dated 29th August 2016 passed by the 7th Additional Judge, Small Causes Court, Pune, and allowing the amendment application (Exhibit-63).
Filing Reason
The petitioners (defendant nos. 2 and 3) sought to amend their written statement to incorporate additional facts that arose from the plaintiff's evidence, but the trial court and revisional court rejected the application on the ground that the amendment was sought after commencement of trial and the petitioners failed to show due diligence.
Previous Decisions
The trial court (7th Additional Judge, Small Causes Court, Pune) rejected the amendment application on 29th August 2016. The revisional court (Adhoc District Judge-1, Pune) confirmed that order on 5th November 2016.
Issues
Whether the amendment of written statement sought after commencement of trial should be allowed when the defendants failed to show that the amendment could not have been raised earlier despite due diligence.
Submissions/Arguments
The petitioners argued that the amendment was necessary to decide the real controversy and that the need for amendment arose from the plaintiff's evidence, thus showing due diligence.
The respondent argued that the amendment was sought belatedly after commencement of trial and the petitioners did not satisfy the due diligence requirement under the proviso to Order VI Rule 17 CPC.
Ratio Decidendi
The proviso to Order VI Rule 17 CPC requires that after commencement of trial, an amendment may be allowed only if the party shows that despite due diligence, the amendment could not have been raised before trial. However, the court must take a liberal approach and allow amendments necessary to decide the real controversy, especially when no prejudice is caused to the opposite party. In this case, the petitioners showed due diligence as the need for amendment arose from the plaintiff's evidence, and the amendment was clarificatory in nature.
Judgment Excerpts
By this Writ Petition filed under Article 227 of the Constitution of India the Petitioners seek quashing and setting aside of the judgment and order dated 5th November, 2016 passed below Exhibit-17 by the Adhoc District Judge-1, Pune dismissing Exhibit-17 and confirming the order dated 29th August, 2016 passed by the 7th Additional Judge, Small Causes Court, Pune in Civil Suit No.371 of 2013.
The application (Exhibit-63) that was rejected by the Trial Court was an application seeking amendment of the Written Statement of Defendant Nos.2 and 3.
Procedural History
The suit was filed on 22nd November 2013. Written statement filed on 21st August 2014. Issues framed on 9th December 2015. Plaintiff's affidavit of evidence filed on 22nd January 2016. Amendment application filed on 19th July 2016. Trial court rejected amendment on 29th August 2016. Revisional court confirmed on 5th November 2016. Writ petition filed in High Court and allowed on 30th June 2017.
Acts & Sections
- Code of Civil Procedure, 1908: Order VI Rule 17, Article 227
- Constitution of India: Article 227
