Important Point
Rule 17, Order VI carries a proviso that bars any amendment after commencement of trial unless court came to conclusion that in spite of due diligence party could not have raised matter before commencement of Trial.

Headnote:Civil Procedure Code, 1908 – Order 6 rule 17 – Amendment of Pleadings – Suit seeking permanent injunction by appellant restraining respondents defendants from interfering with her rights over suit property – Written statement filed by defendants respondents raising objection as to description of suit property as given in plaint –Petition for Amendment of suit property as described in schedule to plaint by Appellants – Rejected by Trial Court – Writ petition there against – Dismissed by High Court – Appeal – Decision in case of Sajjan kumar vs. Ram Krishna relied upon where in held that plaintiff-appellant ought to bediligent in promptly seeking amendment in plaint at an early stage of suit, more so when error on part of plaintiff was pointed out by defendant in written statement itself - Proposed amendment was necessary for purpose of bringing to fore real question in controversy between parties and refusal to permit amendment would create needless complications at stage of execution in event of plaintiff-appellant succeeding in suit – Since appeal in hand being closer on facts to decision in Sajjan Kumar – Hence following that decision, prayer for amendment in present appeal allowed - Impugned orders of Trial Court and High Court set aside. (Paras 9 to 13)
       Civil Procedure Code, 1908 – Order 6 rule 17 – Amendment of Pleadings - Provision for amendment of pleadings was greatly abused and it was one of significant sources of delay in the judicial process - Accordingly, as per recommendation of Law Commission, provision for amendment of pleadings was altogether deleted by Act 46/1999 - The deletion of provision led to widespread protests by lawyers and different legal bodies and as a result provision was once again introduced, albeit with a rider, by Act 22/2002, with effect from July 1, 2002 - In its amended form, Rule 17, Order VI carries a proviso that bars any amendment after commencement of trial unless court came to conclusion that in spite of due diligence party could not have raised matter before commencement of trial.(Para 5)
       2005 (13) SCC 89, Relied upon.
       Facts of the case:-
       1.Suit seeking permanent injunction was filed herein in the instant case by appellant restraining respondents defendants from interfering with her rights over suit property. Written statement was filed by defendants respondents raising objection as to description of suit property as given in plaint. A Petition for Amendment of suit property as described in schedule to plaint was filed by Appellants. Said petition was rejected by Trial Court. Writ petition there against. was dismissed by High Court.
       2.Present appeal has been filed against said order of High Court.
       Findings of the court :
       The Court held that decision in case of Sajjan kumar vs. Ram Krishna was relied upon where in it was held that it is true that plaintiff-appellant ought to have been diligent in promptly seeking amendment in plaint at an early stage of suit, more so when error on part of plaintiff was pointed out by defendant in written statement itself. Proposed amendment was necessary for purpose of bringing to fore real question in controversy between parties and refusal to permit amendment would create needless complications at stage of execution in event of plaintiff-appellant succeeding in suit. Since appeal in hand being closer on facts to decision in Sajjan Kumar. Hence following that decision, prayer for amendment in present appeal allowed. Impugned orders of Trial Court and High Court was set aside.
       Cases referred :
       1.Ajendraprasadji N.Pandey & Anr. Vs. Swami Keshavprakeshdasji N. & Ors., 2006 (12) SCC 1. (Para 8)
       2.Kailash v. Nanhku, 2005 4 SCC 480. (Para 8)
       3.Baldev Singh & Ors. Vs. Manohar Singh & Anr., 2006 (6) SCC 498.(Para 9)
       4.Sajjan Kumar vs. Ram Kishan, 2005 (13) SCC 89. (Para 9)
       Result: Appeal allowed.

judgment

Aftab Alam, J. —

1.Leave granted.

2.This appeal is directed against the order dated July 13, 2006, passed by the High Court in W.P.(C) No.2325 of 2006. It is a brief and non-speaking order by which the High Court dismissed the writ petition and affirmed the order passed by the trial court which, in turn, had rejected the appellants petition under Order 6, Rule 17 of the Code of Civil Procedure (CPC for short) for amendment of the suit property as described in the Schedule to the plaint.

3.The material facts are brief and simple. In the year 2002, the appellant filed a suit, inter alia, seeking permanent injunction restraining the respondents-defendants from interfering with her rights over the suit property and further directing them not to build or demolish the building already existing on the suit land. In the Schedule to the plaint, the description of the suit premises was given as follows :

“Southern half portion of measuring an area of 1937.97 sq.feet = 0.04.448 acres or 0.04.9/20 acres bearing at present holding Nos.304, before that 275 and presently 201, Ward No.IV(Old) New 13, of Giridih Municipality having double storied house together the land over which it stands bounded as follows :-

xxx xxx xxx xxx

xxx xxx xxx xxx”

The defendant-respondents filed their written statement in which objection was especially taken to the description of the suit property as given in the plaint. On behalf of the respondents it was stated that the area of land that might possibly be the subject matter of any dispute was much smaller and the plaintiff had described properties lawfully belonging to them as the suit property. No rejoinder to the written statement was filed on behalf of the plaintiff and on the basis of the pleadings issues were framed on August 13, 2002. Thereafter, the proceedings in the suit remained in abeyance but on August 5, 2002, the appellant-plaintiff filed a Misc. Petition under Order 39, Rule 2(A) read with Section 151 C.P.C. (registered as Misc.Case No.28/2002) for alleged breach of an interim injunction earlier granted in her favour. In that proceeding, the husband of the plaintiff was examined as one of the witnesses. In course of his cross-examination, it was repeatedly put to him that he did not have any idea of the suit land and that he would not claim all the area mentioned in the Schedule to the plaint but the plaintiffs claim would be only over one decimal of land. It was also suggested to him that the rest of the land admittedly belonged to the defendants and further that any alleged dispute between the parties could only be over a very limited area and not the entire property as stated in the Schedule to the plaint. The witness (the appellants husband), however, denied the suggestions made on behalf of the defendants and stuck to the stand that the disputed property was correctly described in the plaint and that was the subject matter of the suit. Later, on September 29, 2004, the amendment petition was filed that gives rise to the present appeal. In the amendment petition it was stated that due to inadvertence the suit land was wrongly described in the Schedule to the plaint and the mistake required to be corrected. It was further stated that, as a matter of fact, one decimal equivalent to 9 chhatak by standard measurement, i.e., 414 square feet of land (along with some structure) was the subject matter of the suit. Accordingly, it was prayed that from the description of the suit property in the plaint the opening words “southern half portion of measuring an area of 1937.97 square feet = 0.04.448 acre or 0.04.9/20 acres” be deleted and substituted by the following :

“1.decimal (one decimal) equivalent to about 9 chhatak (Nine chhatak) by standard measurement that is 414 square feet land alongwith old double storied house consisting of four rooms, two rooms in ground floor and two rooms in first floor and one verandah towards west that is in road side

Click Here to Read the rest of this document

2008 Supreme(SC) 73

2008(1) Supreme 391SUPREME COURT OF INDIA G.P. Mathur & Aftab Alam, JJ.Usha Devi — PetitionerversusRijwan Ahamd & Ors. — RespondentsAppeal (civil) 481 of 2008Decided on : 17-01-2008

Important PointRule 17, Order VI carries a proviso that bars any amendment after commencement of trial unless court came to conclusion that in spite of due diligence party could not have raised matter before commencement of Trial.

2008(1) Supreme 391
SUPREME COURT OF INDIA
G.P. Mathur & Aftab Alam, JJ.
Usha Devi — Petitioner
versus
Rijwan Ahamd & Ors. — Respondents
Appeal (civil) 481 of 2008
Decided on : 17-01-2008

Important Point
Rule 17, Order VI carries a proviso that bars any amendment after commencement of trial unless court came to conclusion that in spite of due diligence party could not have raised matter before commencement of Trial.