IMPORTANT POINT
Where suit had been filed in 1998, proviso to Order VI Rule 17 CPC shall not apply.

Headnote:Civil Procedure Code, 1908 - Order VI Rule 17 Proviso (Appended by Amendment Act, 2002) & Section 16(2) of Amendment Act, 2002 - Amendment not to be allowed after trial had commenced unless Court found that inspite of due diligence party could not have raised the matter before commencement of trial - Proviso however not to apply where suit had had been filed before amendment had come into force - Appellant-plaintiff’s suit for injunction was dismissed by trial Court - Appellant claimed to have purchased suit site in public auction - Respondent had also filed injunction suit to restrain appellant from raising construction of any building on site - Trial Court dismissed plaintiffs suit and decreed respondent’s suit - Both parties filed appeal - Application filed by appellant to amend suit - Application was allowed and appellate Court remanded both suits to trial Court - Respondent filed second appeal - High Court opined that application for amendment was not maintainable and set aside order allowing amendment - Matter was remanded to 1st appellate Court - Appeal - Suit having been filed in 1998, proviso to Order VI Rule 17 CPC was not to apply - High Court committed illegality in relying upon proviso - No case of respondent that by reason of such amendment relief which could not be granted having regard to law of limitation had become available - Impugned judgment was liable to be set aside and matter remitted to High Court.
       Held : In view of the said provision there cannot be any doubt whatsoever that the suit having been filed in the year 1998, proviso to Order VI, Rule 17 of the Code shall not apply.(Para 7)
       The High Court relied upon the said proviso and opined that having regard thereto the plaintiff was obligated to establish that in spite of due diligence it could not have raised the matter before commencement of the trial of the suit. The High Court evidently committed an illegality in relying upon the said provision. (Para 8)
       The learned counsel appearing on behalf of the respondent, however, would submit that the application for amendment being belated, the same should not have been entertained.(Para 9)
       It is one thing to say that the application for amendment suffers from delay or laches but it is another thing to say that thereby the defendant was prejudiced. It is also not a case of the respondent that by reason of such an amendment, the relief which could not be granted having regard to the law of limitation has become available. The court even in such a case is not powerless although the question as to whether the relief sought for would be otherwise barred by limitation is a relevant factor to determine the issue.(Para 10)

JUDGMENT

S.B. Sinha, J. - Leave granted.

2. Appellant-Bank filed a suit against the respondent. The suit related to ownership of a plot admeasuring 610 ft. x 250 ft. situated in the town Yadgir. It was purchased by the plaintiff in a public auction. Allegedly, the respondent is now claiming back the said amount. The suit was initially filed for a decree for injunction. The respondent filed another suit in the same court also for a suit for permanent injunction restraining the Bank from constructing any building. The suit of the appellant was dismissed whereas the suit of the respondent was decreed. Appeals were preferred there against by both the parties. In the said appeals, an application was filed for grant of leave to amend the plaint. The said application for grant of leave to amend the plaint was allowed by the appellate court by an order dated 7.04.2003. The appellate court remanded both the suits to the trial court for their disposal afresh on merits. Second Appeals were filed by the respondent herein before the High Court. The High Court by reason of the impugned judgment opined that the said application for amendment was not maintainable in view of the proviso appended to Order VI, Rule 17 of the Code of Civil Procedure (Code). On the said finding not only the order granting leave to amend the plaint was set aside, the appeals were also allowed and the matter was remitted to the first appellate court for its consideration afresh in accordance with law.

3. The appellant is, thus, before us.

4. The short question which arises for consideration is as to whether the proviso appended to Order VI, Rule 17 of the Code is applicable in the instant case.

Order VI, Rule 17 of the Code reads, thus:

"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."

5. Proviso appended thereto was added by the Code of Civil Procedure (Amendment) Act, 2002 which came into force with effect from 1.07.2002. It 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."

6. Section 16(2) of the Amending Act of 2002 reads as under:

"16(2) Notwithstanding that the provisions of this Act have come into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897–

(a)******

(b)the provisions of rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;"

7. In view of the said provision there cannot be any doubt whatsoever that the suit having been filed in the year 1998, proviso to Order VI, Rule 17 of the Code shall not apply.

8. The High Court relied upon the said proviso and opined that having regard thereto the plaintiff was obligated to establish that in spite of due diligence it could not have raised the matter before commencement of the trial of the suit. The High Court evidently committed an illegality in relying upon the said provision.

9. The learned counsel appearing on behalf of the respondent, however, would submit that the application for amendment being belated, the same should not have been entertained.

10. It is one thing to say that the application for amendment suffers from delay or laches but it is another thing to say that thereby the defendant was prejudiced. It is also not a case of the respo

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2006 Supreme(SC) 1220

IMPORTANT POINTWhere suit had been filed in 1998, proviso to Order VI Rule 17 CPC shall not apply.

Cases Referred (7)

IMPORTANT POINT
Where suit had been filed in 1998, proviso to Order VI Rule 17 CPC shall not apply.