Case Note & Summary
The petitioners, original defendant nos. 1 to 3 and 5 to 8, challenged the order dated 29 April 2023 passed by the Civil Judge, Junior Division, Khandala in Regular Civil Suit No. 140 of 2015, which allowed the plaintiff's application for amendment of the plaint. The suit was filed in 2015 by the respondent no. 1, an elderly illiterate lady, seeking certain reliefs. The trial had commenced, issues were framed on 15 February 2019, and the plaintiff had entered the witness box and was cross-examined. The plaintiff sought to amend the plaint to bring on record how sale-deeds executed by defendant no. 1 in favour of third persons were not binding on her. The trial court allowed the amendment primarily on the ground that the plaintiff was illiterate and had obtained certified copies of the sale-deeds recently. The petitioners opposed the amendment on grounds of limitation and lack of due diligence under the proviso to Order 6 Rule 17 of the Code of Civil Procedure, 1908. The High Court held that the plaintiff was aware of the sale-deeds from the beginning, as she had pleaded about them in the plaint and the defendants had raised objections. The court emphasized that after commencement of trial, the only test is due diligence, and the plaintiff failed to show any diligence. The amendment was sought after a long gap, and the sale-deeds were from 1999 and 2008. The High Court set aside the trial court's order and dismissed the amendment application, observing that if the plaintiff ultimately succeeds, she can seek adjustment of the sold land towards the defendant's share at the execution stage.
Headnote
A) Civil Procedure - Amendment of Plaint - Order 6 Rule 17, Code of Civil Procedure, 1908 - Due Diligence - The trial court allowed amendment of plaint after commencement of trial on grounds that plaintiff was illiterate and obtained certified copies of sale-deeds recently. The High Court set aside the order, holding that the plaintiff was aware of the sale-deeds from the inception of the suit and failed to show due diligence. The test of deciding real controversy applies only before trial; after trial, only due diligence is relevant (Paras 12-14).
B) Civil Procedure - Limitation - Amendment of Plaint - Order 6 Rule 17, Code of Civil Procedure, 1908 - The amendment sought to challenge sale-deeds executed in 1999 and 2008, while the suit was filed in 2015 and amendment sought in 2022. The High Court observed that the amendment was sought after a long gap and could be barred by limitation (Para 14).
Issue of Consideration
Whether the trial court was justified in allowing the plaintiff's application for amendment of the plaint after the trial had commenced, particularly in light of the proviso to Order 6 Rule 17 of the Code of Civil Procedure, 1908.
Final Decision
The High Court allowed the writ petition, set aside the trial court's order dated 29 April 2023, and dismissed the plaintiff's amendment application.
Law Points
- Amendment of plaint after commencement of trial
- Due diligence requirement under Order 6 Rule 17 CPC
- Proviso to Order 6 Rule 17 CPC
- Limitation for amendment
- Real controversy test not applicable after trial commencement
Case Details
2024 LawText (BOM) (10) 92
Writ Petition No. 10831 of 2023
Mr. Dilip Bodake for Petitioners, Mr. Ajit Kenjale with Mr. Sohil Gulabani, Mr. Azharuddin Khan, Mr. Sai Kadam for Respondent No. 1
Ganpat Bhagoji Kshirsagar, Vidyadhar Ganpat Kshirsagar, Chandrashekhar Ganpat Kshirsagar, Meena Ganpat Kshirsagar @ Meena Suresh Shewate, Nilima @ Rajashree Ganpat Kshirsagar, Jyoti Ganpat Kshirsagar, Pallavi Ganpat Kshirsagar
Anjana Krushna Jamdade, Subhadra Ganpat Kshirsagar (deceased)
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Nature of Litigation
Civil writ petition challenging the trial court's order allowing amendment of plaint after commencement of trial.
Remedy Sought
The petitioners (original defendants) sought to set aside the trial court's order allowing the plaintiff's amendment application.
Filing Reason
The trial court allowed the plaintiff's amendment application despite the trial having commenced, on grounds of plaintiff's illiteracy and recent procurement of certified copies of sale-deeds.
Previous Decisions
The trial court (Civil Judge, Junior Division, Khandala) allowed the amendment application on 29 April 2023 in Regular Civil Suit No. 140 of 2015.
Issues
Whether the trial court was justified in allowing the amendment of the plaint after the trial had commenced.
Whether the plaintiff showed due diligence as required under the proviso to Order 6 Rule 17 CPC.
Submissions/Arguments
Petitioners argued that there was no due diligence as the plaintiff was aware of the sale-deeds from the beginning and the amendment was barred by limitation.
Respondent argued that the plaintiff was illiterate and obtained certified copies recently, and the amendment was necessary for deciding the real controversy.
Ratio Decidendi
After commencement of trial, the only test for allowing amendment is due diligence under the proviso to Order 6 Rule 17 CPC. The plaintiff's illiteracy and recent procurement of certified copies do not constitute due diligence when she was aware of the sale-deeds from the inception of the suit. The amendment was also sought after a long gap and could be barred by limitation.
Judgment Excerpts
The only issue arisen in this Writ Petition is, whether the trial Court was justified in allowing the Application filed by the Plaintiff for amendment of the Plaint particularly when the trial has commenced.
The test of deciding the real controversy is applicable when the amendment is asked for prior to the commencement of the trial. After commencement of the trial, the only test of due diligence is to be seen.
Merely because she is an illiterate lady and merely because she obtained certified copies of those sale-deeds subsequently, how it can be said that she was diligent in prosecuting the Suit and asking for amendment.
Procedural History
The plaintiff filed Regular Civil Suit No. 140 of 2015 in the Court of Civil Judge, Junior Division, Khandala. Issues were framed on 15 February 2019. The plaintiff entered the witness box and was cross-examined. The plaintiff filed an amendment application in 2022, which was allowed by the trial court on 29 April 2023. The defendants filed the present writ petition challenging that order. The High Court heard the matter on 9 October 2024 and allowed the writ petition, setting aside the trial court's order.
Acts & Sections
- Code of Civil Procedure, 1908: Order 6 Rule 17
