Case Note & Summary
The case arises from a civil suit filed by Respondent No.1 (Plaintiff) in the Small Causes Court, Pune, being Civil Suit No.371 of 2013, seeking relief in respect of certain premises. The Petitioners, who were Defendant Nos.2 and 3 in the suit, filed their written statement on 21st August 2014. Issues were framed on 9th December 2015, and the plaintiff filed his affidavit of evidence on 22nd January 2016. Thereafter, on 19th July 2016, the Petitioners filed an application (Exhibit-63) seeking amendment of their written statement to incorporate a plea of adverse possession. The Trial Court rejected the application on 29th August 2016, holding that since the amendment was sought after commencement of trial, the Petitioners were required to show that the amendment could not have been raised earlier despite due diligence, which they failed to do. The Petitioners then filed a revision application (Exhibit-17) before the Adhoc District Judge-1, Pune, which was dismissed on 5th November 2016, confirming the Trial Court's order. Aggrieved, the Petitioners filed the present writ petition under Article 227 of the Constitution of India. The High Court observed that the amendment sought was necessary to determine the real controversy between the parties and that no prejudice would be caused to the plaintiff which could not be compensated by costs. The court noted that the Petitioners had explained the delay and that the amendment was bona fide. The court set aside the impugned orders and allowed the amendment, directing the Petitioners to carry out the amendment within two weeks and to pay costs of Rs.5,000 to the plaintiff.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17, Code of Civil Procedure, 1908 - Due Diligence - The court considered whether an amendment application filed after commencement of trial should be allowed. The Petitioners (Defendant Nos.2 and 3) sought to amend their written statement to incorporate a plea of adverse possession. The Trial Court and Revisional Authority rejected the application on the ground that the Petitioners failed to show due diligence. The High Court held that the amendment was necessary to determine the real controversy and that the opposite party could be compensated by costs. The court allowed the amendment, setting aside the impugned orders, and directed the amendment to be carried out within two weeks. (Paras 1-10) B) Civil Procedure - Commencement of Trial - Order VI Rule 17, Code of Civil Procedure, 1908 - The court clarified that the proviso to Order VI Rule 17 applies only after the trial has commenced. In this case, the trial had commenced as issues were framed and the plaintiff's evidence was filed. However, the court found that the amendment was bona fide and necessary for the just adjudication of the case, and the delay was not fatal. (Paras 3-5)
Issue of Consideration
Whether the amendment of the 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 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. The Petitioners were permitted to amend the written statement within two weeks from the date of the order, 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 amendments
- prejudice to opposite party
