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Judgment
The petitioners have filed the present petition, under Article 227 of the Constitution of India, challenging the order dated 02/02/2016 passed by
the II Civil Judge Class-II Satna in Civil Suit No.90-A/2012 thereby rejecting the application preferred by the petitioners under Order 6 Rule 17
of the CPC.
Brief facts of the case are that the petitioners/ plaintiffs have filed a civil suit for declaration of partition in respect of 1/3 share of the joint
ancestral property as well as for permanent injunction. During the pendency of the said civil suit, the petitioners had filed an application under
Order 6 Rule 17 of the CPC for amendment in the plaint on the ground that due to inadvertance mistake in place of 1/4 share, 1/2 & 1/3 share has
been mentioned in the plaint, therefore, petitioners be permitted to correct the said mistake. Respondents have filed reply to the said application for
amendment on the ground that this application has been filed for causing the delay of trial in the said suit. The trial Court vide order dated
02/02/2016 has dismissed the said application. Being aggrieved by that order, the petitioners have filed the present petition.
Learned counsel for the petitioners submits that the trial Court has erred in dismissing the application preferred by the petitioners under Order 6
Rule 17 of the CPC. He submits that by proposing the said amendment, petitioners want to correct certain typographical error in the plaint. He
further relied on the judgment passed by the Hon''ble Apex Court in the case of Surender Kumar Sharma vs. Makhan Singh, 2009(10) SCC 626.
Learned counsel for the respondents supports the order passed by the trial Court and argues that the trial Court has not committed any error in
rejecting the application preferred by the petitioner under Order 6 Rule 17 of the CPC. He submits that as per proviso to order 6 Rule 17 of the
CPC as the petitioner has failed to show due diligence in filing the application after commencement of the trial, therefore, no error has been
committed by the trial Court in dismissing the said application. He relied upon the judgment passed by the Apex Court in the case of J. Samuel and
others vs. Gattu Mahesh & others, 2012 (2) SCC 300 and Vidhyabai & others vs. Padmalatha and another, 2009(2) SCC 409, and the judgment
passed by this Court in the case of Dashrath and another vs. Raju Bai wd/o Chogalal, 2015 (1) MPLJ 92.
Heard learned counsel for the parties and perused the record as well as the order passed by the trial Court.
From perusal of the record it reveals that the plaintiffs/petitioners have filed an application under Order 6 Rule 17 of the CPC for amendment in
the plaint. In the present case, the issues have already been framed and trial has already been commenced. As per proviso to Order 6 Rule 17 of
the CPC, no amendment is permissible after commencement of the trial except when the parties shows the due diligence. In the present case, from
perusal of the averments made in the application it reveals that the petitioners have not show any reason for filing the application for amendment at
this stage i.e. after commencement of the trial.
The Apex Court in the case of J. Samual (supra) in para 15 & 16 has held as under :-
....................... The proviso inserted in Rule 17 clearly states that no amendment shall be allowed after the trial has commenced
except when the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the
commencement of the trial.
................................. No doubt, Rule 17 confers power on the Court to amend the pleading at any stage of the proceedings.
However, the proviso restricts that power once the trial has commenced. Unless the Court satisfies (sic itself) that there is a
reasonable cause for allowing the amendment, normally the Court has to reject such a request.
Similarly, in the case of Vidyabai (supra), the Apex Court in para 10, 11 & 15 have held as under :-
By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to
Order 6 Rule 17 of the Code, which reads as under :-
Provided 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.
It is couched in a mandatory form. The Court''s jurisdiction to allow such an application is taken away unless the conditions precedent
therefore are satisfied viz. I must come to a conclusion that in spite of due diligence the parties could not have raised the matter before
the commencement of the trial.
From the order passed by the learned trial Judge, it is evident that the respondents had not been able to fulfil the said
precondition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion,
it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking
of various steps at different stages of the proceedings. Filing of an affidavit in lieu of examination-in-chief of the witness, in our
opinion, would amount to ""commencement of proceeding"".
We may notice that in Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N. this Court noticed the decision of this Court
in Kailash to hold :
Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence,
the matter could not be raised before the commencement of trial. It is submitted that after the trial of the case has commenced, no
application of pleading shall be allowed unless the above requirement is satisfied. The amended Order 6 Rule 17 was due to the
recommendation of the Law Commission since Order (sic Rule) 17, as it existed prior to the amendment, was invoked by parties
interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amending
Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott
of courts and, therefore, by the Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recongnising the
power of the Court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule. The
details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by
way of amendment by the appellants were well within their knowledge on their court case, and manifests the absence of due diligence
on the part of the appellants disentitling them to relief.
This Court in the case of Dashrath (supra) in para 6 has held as under :-
After the amendment in the Civil Procedure Code and incorporation of the proviso in Rule 17 of Order 6, the discretion to amend
the pleading at any stage of the proceedings has been restricted and the requirement of showing ""due diligence"" has been imposed
before allowing the amendment after the commencement of the trial. In view of amended provision 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 the trial, no
application for amendment can be allowed after the commencement of the trial. The Supreme Court in the matter of Salem Advocate
Bar Association, Tami Nadu vs. Union of India, reported in 2005 AIR SCW 3827, while upholding the validity of the amendment in
the Civil Procedure Code, has held that the proviso to some extent curtails the absolute discretion to allow amendment at any stage,
by observing as under :-
Order VI Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted.
It has again been resorted by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being
allowed after the trial has commenced, unless Court comes to the conclusion that in spite of due diligence, the party could not have
raised the matter before the commencement of the trial. The proviso, to some extent, curtails absolute direction to allow amendment
at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such
amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There
is no illegality in the provision.
In light of the aforesaid judgments, the trial Court has jurisdiction to permit the amendment at any stage of trial, after commencement of the trial,
if the plaintiff shows due diligence in filing the application for amendment. As in the present case, the petitioners have failed to show due diligence in
filing this application, therefore, the trial Court has rightly rejected the application preferred by the petitioners. The judgment relied on by learned
counsel for the petitioners would not be applicable in the present case because in the present case, application preferred by the petitioners has
been dismissed on the ground of due diligence.
Accordingly, the writ petition is hereby dismissed.