Case Note & Summary
The petitioner, Mohd. Sajid, original defendant in a civil suit filed in 2008, sought to amend his written statement after the trial had commenced. The amendment application was filed in the trial court and dismissed. The petitioner then approached the Bombay High Court under Article 227 of the Constitution. The respondents, legal heirs of the original plaintiff Abdul Rashid, opposed the petition. The core issue was whether the amendment could be allowed without showing due diligence as required by the proviso to Order 6 Rule 17 of the Code of Civil Procedure, 1908. The petitioner contended that the amendment merely elaborated his existing defence and did not introduce new facts, relying on State of Bihar vs. Modern Tent House. The respondents argued that no explanation for the delay was given, citing Conception Fernandes vs. Tasneem Shaikh. The court examined the proviso, which mandates that after trial commencement, amendment cannot be allowed unless the party proves that despite due diligence, the matter could not have been raised earlier. The court found that the petitioner failed to provide any justification for not raising the proposed amendments earlier. The court distinguished Modern Tent House, noting that in that case, the amendment was allowed because it was necessary for determining the real controversy and no new facts were introduced. However, in the present case, the petitioner did not explain why the elaboration could not have been made before trial. The court held that the test of due diligence was not satisfied. Consequently, the writ petition was dismissed, and the trial court's order refusing amendment was upheld. No order as to costs.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order 6 Rule 17 CPC - Due Diligence - The petitioner, original defendant, filed an amendment application after commencement of trial seeking to elaborate his defence. The court held that the amended proviso to Order 6 Rule 17 CPC applies, requiring the party to show that despite due diligence, the amendment could not have been sought earlier. No explanation for delay was offered, hence the application was dismissed. (Paras 3-7) B) Civil Procedure - Amendment of Pleadings - Elaboration of Defence - Order 6 Rule 17 CPC - The petitioner argued that the amendment merely elaborated existing defence and no new facts were introduced. The court rejected this, stating that even elaboration requires due diligence under the proviso. The judgment in State of Bihar vs. Modern Tent House was distinguished as inapplicable. (Paras 4-6)
Issue of Consideration
Whether the petitioner (original defendant) is entitled to amend his written statement after commencement of trial without showing due diligence as required under the proviso to Order 6 Rule 17 of the Code of Civil Procedure, 1908.
Final Decision
Writ petition dismissed. Trial court's order refusing amendment upheld. No order as to costs.
Law Points
- Amendment after commencement of trial requires due diligence
- Elaboration of defence not a ground to bypass proviso to Order 6 Rule 17 CPC
