The due diligence test in Order VI Rule 17 of the Code of Civil Procedure does not apply universally to all amendments after trial commencement; courts should focus on the necessity of amendments for justice.

ORDER :

ANANT RAMANATH HEGDE, J.

Whether the “due diligence test" envisaged in the proviso to Order VI Rule 17 of the Code of Civil Procedure 1908, applies to every application seeking amendment of pleadings filed “after commencement of trial” or the proviso has inherent limitations in its application on certain types of applications seeking amendment of pleadings filed after commencement of trial, is the question that needs consideration in this petition.

1. The petition is filed assailing the order rejecting the application seeking amendment of the plaint which is filed 10 years after the presentation of the plaint and also after commencement of trial. The plaintiffs are the petitioners.

2. The petitioners’ suit is one for declaration and injunction to declare that the sale deed dated 24.04.2009 executed by 1^st plaintiffs' father in favour of the defendants as cancelled. Consequential relief of injunction is to restrain the defendants from interfering with the plaintiffs’ possession over the suit property.

3. The defendants disputed the claim. The defendants asserted their title and possession based on the sale deed dated 24.04.2009.

4. After the evidence of PW2, I.A. No.VII was filed to incorporate a plea that the plaintiffs were dispossessed from the property on 29.03.2022 i.e., during the pendency of the suit. In addition, the plaintiffs sought to include a prayer for possession.

5. The defendants opposed the prayer. The Trial Court dismissed the application on four grounds referred to in paragraph No.10 below.

6. The Trial Court also noticed the judgment of the Hon’ble Apex Court in Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and Another , (2022) 16 SCC 1 and the judgment of the Co-ordinate Bench of this Court in Kumari Meenakshi and others vs. Smt. H. Nagaratnamma and others , 2023 (3) KCCR 2485 .

7. Learned counsel appearing for the plaintiffs-petitioners would contend that:

7.1. The plaintiffs, in their application seeking amendment, stated that despite an admission by PW1, in cross- examination regarding dispossession in 2014, PW2(a witness examined on behalf of the plaintiffs) stated that the plaintiffs were dispossessed in 2022 during the pendency of the suit.

7.2. Under Article 64 of the Limitation Act, 1963 (Act,1963), the limitation to seek possession is 12 years from the date of dispossession; as such, the application is within time.

8. Learned counsel for the defendants/respondents would urge that:

8.1 The plaintiffs admitted in cross-examination to being dispossessed in 2014, and the subsequent evidence of PW2 that plaintiffs are disposed in 2022 is an afterthought to circumvent that admission.

8.2 Having been dispossessed in 2014, the plaintiffs ought to have filed suit for possession; the proposed amendment is time-barred and changes the nature of the suit.

8.3 Order VI Rule 17 of the Code of Civil Procedure (Code), as amended in 2002, mandates that a party seeking an amendment “after the commencement of trial” must satisfy that despite due diligence, the plea for amendment could not be made before the commencement of trial. The plaintiffs failed to establish due diligence and not entitled to the relief.

9. The Court has considered the contentions raised at the Bar and perused the records.

10. The Trial Court has dismissed the applications on four grounds:

a. The plaintiffs did not satisfy that, despite due