Vikash Surendraji Kejriwal & Ors. vs Kishorkumar Chuunilalji Mantri & Ors.

Rule. Rule is made returnable forthwith. Heard finally with the consent of the learned counsel for the parties.

The present petition filed under Article 226 and 227 of the Constitution of India takes exception to the order passed below Exh. 301 in Special Civil Suit No. 2/2001 by the 3rd Joint Civil Judge, Senior Division, Amravati, on 24.01.2025. The said order was passed on an application filed by the defendant in the subject suit for amending his written statement.

Facts as can be seen from the petition are as under:

The petitioners are the original defendants Nos. 4 to 8 in a suit filed by respondent No. 1 herein seeking a decree of specific performance, permanent injunction, and possession. It is stated in the plaint that the plaintiff, i.e., respondent No. 1 herein, entered into an agreement on 29.07.1997, on the basis of which the said suit was filed. By amending the plaint, the said plaintiff incorporated pleadings relating to the subsequent agreement of sale dated 16.10.2005.

The matter then proceeded and the parties led their evidence. When the matter was at the fag end, the defendants Nos. 4 to 8 filed an application for amendment of the written statement. The said application, however, came to be rejected. The said order is impugned in the present petition.

I have heard Mr. S.M. Vaishnav, learned counsel for the petitioners, and Ms. Gauri Venkatraman, learned counsel for respondent No. 1.

It is contended by the learned counsel for the petitioners that the trial Court has gravely erred in rejecting the application. It is his submission that the only reason which has weighed with the trial Court in rejecting the application is the long pendency of the suit. However, he submits that the trial Court has not appreciated the fact that the amendment was necessary to amplify the defence and was only due to the subsequent acts and subsequent events occurring after filing of the written statement. It is his further submission that the proviso to Order 6 Rule 17 of the Civil Procedure Code, 1908 (hereinafter referred to as the “CPC”), which contemplates due diligence to be exercised by the party, would not be applicable in the present case since the suit was filed before the said amendment came into force. He relies on a judgment of the Hon’ble Apex Court in the case of Sumesh Singh Vs. Phoolan Devi and Others, reported in (2009) 12 SCC 689, as also a judgment in the case of Mohammed Khaleel (D) Through LRs & Ors. Vs. Jayamma, reported in 2026 LiveLaw (SC) 638, to support his submission.

Per contra, Ms. Gauri Venkatraman, learned counsel for respondent No. 1, countering the submission, supports the impugned order. It is her submission that the trial Court has exercised the jurisdiction vested in it in an equitable manner and no perversity can be found. By taking me through the impugned order, it is the submission of the learned counsel for respondent No. 1 that the Court has recorded a finding that the amendment is not necessary since it would not have a bearing on the ultimate outcome of the suit.

I have considered the contentions canvassed by the learned counsels for the respective parties and gone through the record. There is no dispute about the proposition that the suit being filed in the year 2001, the amended provision of Order 6, Rule 17 and, more particularly, the Proviso which casts an obligation on the party to aver the exercise of due diligence while seeking amendment after the commencement of trial would not come in the way.

The Hon’ble Apex Court, in the judgment of Sumesh Singh Vs. Phoolan Devi and Others, and Mohammed Khaleel (D) Through LRs & Ors. Vs. Jayamma, referred to supra, has clarified the provision of law and held that by virtue of Section 16(2)(b) of the Code of Civil Procedure (Amendment) Act, 2002, the amendment carried out therein shall only apply to suits which were filed thereafter, i.e., after the amending Act came into force. Therefore, the only question which is to be decided is whether, in the light of the unamended provision of Order 6, Rule 17 of the CPC, the written statement can be amended. The provisions of Order 6, Rule 17, as unamended prior to the 2002 amendment, have been given a wide interpretation time and again by this Court as also the Hon’ble Supreme Court. It has been consistently held that all amendments which are necessary for adjudication of the trial are to be allowed. It is also a settled principle of law that the parameters for seeking amendment of a plaint and amendment of a written statement are quite distinct.

In the present case, the proposed amendment as stated in the application at Exhibit 301 was regarding the subsequent conviction of the plaintiff as also his wife in proceedings under Section 138 of the Negotiable Instruments Act, 1881. It is noteworthy to mention, and as can also be seen from the said judgment, that the said convictions were awarded on 24.01.2024 and 27.07.2023 itself. The proposed amendment as stated in para 31-A pertains to the said fact. As I have already observed, the amendment as proposed in para 31-B is already not pressed by the present petitioners.

The reason which has weighed with the trial Court in rejecting the application is only delay in moving the said application. However, the trial Court seems to lose sight of the fact that the prosecution and conviction of the plaintiff and his wife under the provisions of the Negotiable Instruments Act, 1881, were subsequent to the filing of the written statement and, therefore, the defendant was right in moving the application for amendment. The trial Court ought to have exercised its discretion and allowed the application by imposing some costs. However, it has not endeavoured to do so. It has only proceeded to record various dates on which the suit progressed or otherwise. It is a settled principle of law that delay on its own cannot be the sole reason to reject the amendment if otherwise the amendment is necessary for deciding the controversy in the suit.

In that view of the matter, the order of the trial Court rejecting the application for amendment is perverse, it being contrary to the settled proposition of law as stated supra. However, I cannot be oblivious of the fact that the suit pends since 2001 and, therefore, the plaintiff needs to be compensated by imposing costs of Rs. 10,000 on the defendant, i.e., the petitioner herein. In that view of the matter, the following order is passed:

The petition is allowed.

ii) The order passed below Exh. 301 in Special Civil Suit No. 2/2001 by the 3rd Joint Civil Judge, Senior Division, Amravati, on 24.01.2025 is quashed and set aside subject to the payment of costs of Rs. 10,000/- (Ten Thousand Rupees) by the petitioners to respondent No. 1, i.e., the original plaintiff, within two weeks from the date of the order. Payment of costs would be a condition precedent for carrying out the amendment in the written statement.

iii) The application at Exhibit 301 is thus partly allowed subject to payment of costs as stated supra. The defendants are permitted to amend their written statement and add para-31A in it.

Writ petition is allowed and disposed of. Rule is made absolute in the aforesaid terms.