Case Note & Summary
The petitioners, Hemlata Harish Bhatia and Bharat Vallabhdas Bhatia, filed a suit for partition in 2004 against the respondents, Vallabhdas Lalchand Dhamanmal and Anjana Rajesh Kandhari. During the pendency of the suit, the first respondent executed a sale deed on 23 January 2006 and a gift deed on 12 May 2006 in respect of the suit properties. The written statement filed by the first respondent on 29 November 2007 disclosed these transactions. The petitioners, however, did not seek to amend the plaint at that time. The trial commenced, and on 17 November 2016, the petitioners filed Chamber Summons No.1362 of 2015 under Order VI Rule 17 of the Code of Civil Procedure, 1908, seeking to amend the plaint to challenge the sale deed and gift deed. The City Civil Court, Greater Mumbai, dismissed the application on the ground that the petitioners failed to exercise due diligence in seeking the amendment after the commencement of trial. The High Court, in the writ petition under Article 227 of the Constitution of India, upheld the trial court's order, holding that the amendment was not necessary for determining the real controversy and that the petitioners could not show that despite due diligence, they could not have raised the matter before the commencement of trial. The High Court noted that the petitioners were aware of the transactions since 2007 but waited until 2015 to file the amendment application. The writ petition was dismissed.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Amendment after commencement of trial - The petitioners sought to amend the plaint to challenge a sale deed and gift deed executed by the respondent after the suit was filed, but before the written statement was filed. The trial court dismissed the application on the ground that the petitioners failed to exercise due diligence in seeking the amendment earlier. The High Court upheld the order, holding that the amendment was not necessary for determining the real controversy and that the petitioners could not show that despite due diligence, they could not have raised the matter before the commencement of trial. (Paras 1-10)
B) Civil Procedure - Due Diligence - Order VI Rule 17 CPC - The proviso to Order VI Rule 17 requires that no application for amendment shall be allowed after the trial has commenced unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The High Court found that the petitioners were aware of the sale deed and gift deed since 2007 when the written statement was filed, but they filed the amendment application only in 2015, after the trial had commenced. Thus, the petitioners failed to satisfy the due diligence requirement. (Paras 5-10)
Issue of Consideration
Whether the trial court was justified in dismissing the application for amendment of the plaint filed after the commencement of trial, on the ground that the petitioners failed to exercise due diligence in seeking the amendment earlier.
Final Decision
The High Court dismissed the writ petition and upheld the order of the City Civil Court, Greater Mumbai, dated 17 November 2016, rejecting the amendment application.
Law Points
- Amendment of pleadings after commencement of trial
- Order VI Rule 17 CPC
- due diligence
- partition suit
- sale deed
- gift deed
- limitation
Case Details
2018 LawText (BOM) (12) 161
Writ Petition No.4346 of 2017
Mr.Ankit Lohia, with Ms.Neeta Parikh and Ms.Pooja Batra for the Petitioners. Mr.Sidharth Samantaray with Mr.Yugal Bhatia I/b Ms.Kalpana Trivedi for the Respondents.
Hemlata Harish Bhatia and Bharat Vallabhdas Bhatia
Vallabhdas Lalchand Dhamanmal and Anjana Rajesh Kandhari
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Nature of Litigation
Civil writ petition under Article 227 of the Constitution of India challenging an order of the City Civil Court dismissing an application for amendment of the plaint under Order VI Rule 17 CPC.
Remedy Sought
The petitioners sought to set aside the order dated 17 November 2016 passed by the City Civil Court, Greater Mumbai, dismissing Chamber Summons No.1362 of 2015, and to allow the amendment of the plaint.
Filing Reason
The petitioners filed the writ petition because the trial court dismissed their application for amendment of the plaint to challenge a sale deed and gift deed executed by the respondent after the suit was filed, on the ground of lack of due diligence.
Previous Decisions
The City Civil Court, Greater Mumbai, by order dated 17 November 2016, dismissed Chamber Summons No.1362 of 2015 filed by the petitioners under Order VI Rule 17 CPC.
Issues
Whether the trial court was justified in dismissing the application for amendment of the plaint filed after the commencement of trial on the ground that the petitioners failed to exercise due diligence.
Submissions/Arguments
The petitioners argued that the amendment was necessary to bring on record the subsequent events of sale deed and gift deed executed by the respondent, which were relevant for the partition suit.
The respondents opposed the amendment on the ground that the petitioners were aware of the transactions since 2007 but filed the amendment application only in 2015, after the trial had commenced, and thus failed to exercise due diligence.
Ratio Decidendi
Under Order VI Rule 17 CPC, no application for amendment shall be allowed after the trial has commenced unless the court is satisfied that despite due diligence, the party could not have raised the matter before the commencement of trial. The petitioners were aware of the sale deed and gift deed since 2007 when the written statement was filed, but they filed the amendment application only in 2015, after the trial had commenced. Therefore, the petitioners failed to satisfy the due diligence requirement, and the trial court correctly dismissed the application.
Judgment Excerpts
By this writ petition filed under Article 227 of the Constitution of India, the petitioners have impugned the order dated 17th November, 2016 passed by the learned City Civil Court, Greater Mumbai, dismissing the Chamber Summons No.1362 of 2015 filed by the petitioners (original plaintiffs) under Order VI Rule 17 of the Code of Civil Procedure, 1908.
The proviso to Order VI Rule 17 requires that no application for amendment shall be allowed after the trial has commenced unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
Procedural History
On 13 January 2014, the petitioners filed a suit for partition. On 16 March 2004, this Court granted ad-interim reliefs. The Notice of Motion was withdrawn on 10 December 2004. On 23 January 2006, the respondent executed a Sale Deed. On 12 May 2006, the respondent executed a Gift Deed. On 29 November 2007, the respondent filed his written statement disclosing these deeds. On 17 November 2016, the City Civil Court dismissed the petitioners' Chamber Summons for amendment. The petitioners then filed the present writ petition under Article 227 of the Constitution of India.
Acts & Sections
- Code of Civil Procedure, 1908: Order VI Rule 17
- Constitution of India: Article 227
