2005 (7) TMI 699 - HC - Indian Laws

Court rejects late amendment to plaint, emphasizes due diligence in litigation. Revision petition allowed.

Jeya Versus Sundaram Iyyar

The court held that the trial court erred in allowing the amendment to the plaint after the trial had commenced without considering the proviso to Order 6 ... - Issues Involved:1. Permissibility of amendment to the plaint after the commencement of the trial.2. Applicability of the proviso to Order 6 Rule 17 CPC.3. Maintainability of the revision petition under Article 227 of the Constitution of India.Detailed Analysis:1. Permissibility of Amendment to the Plaint After Commencement of Trial:The plaintiff filed a suit for the declaration that a debt on a mortgage was discharged, and later sought to amend the plaint to include a prayer for recovery of possession. The trial court allowed this amendment despite objections that it would change the basic structure and character of the suit. The defendant argued that the amendment was impermissible under the amended Order 6 Rule 17 CPC, which bars amendments after the trial has commenced unless the court concludes that the party could not have raised the matter before the trial commenced despite due diligence.The court noted that the plaintiff had multiple opportunities to include the proposed amendments before the trial commenced but failed to do so. The court emphasized that the amendment should not be allowed as it would change the nature of the suit from redemption to declaration of title and recovery of possession, which was not permissible after the trial had commenced.2. Applicability of the Proviso to Order 6 Rule 17 CPC:The court examined whether the proposed amendment fell within the exceptions provided in the proviso to Order 6 Rule 17 CPC, which states that no application for amendment shall be allowed after the trial has commenced unless the court concludes that despite due diligence, the party could not have raised the matter before the commencement of the trial. The court found that the plaintiff had ample opportunity to include the necessary prayers before the trial began and even when the first amendment was made. The court concluded that the plaintiff did not exercise due diligence and thus did not fall within the exception provided by the proviso.3. Maintainability of the Revision Petition Under Article 227 of the Constitution of India:The plaintiff contended that the revision petition was not maintainable based on the ruling in Prem Bakshi and Ors. v. Dharam Dev and Ors., which considered the scope of Section 115 CPC. However, the court clarified that the revision petition was filed under Article 227 of the Constitution of India, which provides supervisory jurisdiction to the High Court. The court referred to the Supreme Court's decision in Surya Dev Rai v. Ram Chander Rai and Ors., which allowed for revision petitions under certain circumstances invoking Article 227. The court held that the trial court had failed to exercise its jurisdiction properly by not considering the proviso to Order 6 Rule 17 CPC, thus justifying the maintainability of the revision petition.Conclusion:The court concluded that the trial court had erred in allowing the amendment to the plaint after the trial had commenced without considering the proviso to Order 6 Rule 17 CPC. The court emphasized the need for due diligence and found that the plaintiff had failed to demonstrate that the proposed amendment could not have been raised before the trial commenced. Consequently, the court set aside the trial court's order allowing the amendment and dismissed the plaintiff's application for amendment, thereby allowing the revision petition. The court directed the parties to bear their own costs.