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T.V. Sasikala and Ors. Vs. C.P. Joseph - (High Court of Kerala) (21 Dec 2020)

Burden is on the person who seeks an amendment after commencement of the trial to show that, inspite of due diligence, the amendment could not have been sought earlier

MANU/KE/3480/2020

Property

In present case, the suit is instituted for granting a decree of declaration that, the Plaintiff has got absolute title, ownership and possession over the property and also a decree of prohibitory injunction restraining the Defendants from trespassing into that property and committing any acts of waste therein.

After commencement of the examination of witnesses in the suit, the Plaintiff filed an application (Exhibit P5) under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) for amendment of the plaint. The Defendants filed objection to application raising various contentions. As per Exhibit P7 order, the trial Court allowed application. The Defendants have filed present original petition under Article 227 of the Constitution of India, 1950 challenging the legality and propriety of Exhibit P7 order.

Order VI Rule 17 of the CPC provides that, the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The proviso to this rule states that, no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial.

The proviso to Order VI Rule 17 of the CPC, to some extent, curtails the absolute discretion of the Court to allow amendment at any stage of the suit. If the application for amendment is filed after commencement of trial, it has to be shown that inspite of due diligence, such amendment could not have been sought earlier. When the application for amendment filed by a party to the suit is after commencement of trial, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso to Order VI Rule 17 of the CPC.

Admittedly, in the instant case, application was filed by the Plaintiff after conclusion of the examination of some of the witnesses on his side, that is, after commencement of the trial of the suit. One of the main contentions raised by the Defendants in the objection filed by them to application is that, the application for amendment of plaint cannot be allowed since it was filed by the plaintiff after the commencement of the trial of the suit. Therefore, before allowing application, it was incumbent on the trial Court to come to the conclusion, that inspite of due diligence, the Plaintiff could not have raised the matter before commencement of the trial of the suit.

The burden is on the person who seeks an amendment after commencement of the trial to show that inspite of due diligence, such an amendment could not have been sought earlier. While passing Exhibit P7 order, the trial Court has not considered Exhibit P5 application in the light of the provision contained in the proviso to Order VI Rule 17 of the CPC. The trial Court has also not considered whether the other objections raised by the defendants to application are legally sustainable or not. Application requires reconsideration by the trial Court. Exhibit P7 order passed by the trial court is set aside. Exhibit P5 application is remanded to the trial court for fresh consideration and disposal.

Tags : PLAINT   AMENDMENT   LEGALITY  

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