IMPORTANT POINT
An amendment to change the relief sought in a case, which does not change the factual matrix and aims to nullify the operation of a document, should be allowed if the challenge against the document was raised within the prescribed period of time.

1. Can a suit for declaration of a document as null and void could be moulded as one for cancellation of that document by taking recourse to Order VI Rule 17 of the Code of Civil Procedure, that too, at a time when the case was reserved for judgment? This is the short issue to be resolved in this Original Petition.

2. The plaintiff in O.S. No. 1/2019 on the files of Sub Court, Kannur, an octogenarian lady, sought a declaration in the said suit that Document No. 100/2016 of S.R.O. Anjarakandy executed by her in favour of the defendant in that suit, who is none other than her daughter, is void since it was got executed by perpetrating fraud and misrepresentation upon her. She alleged that her daughter, the defendant in the suit, took her to the Sub Registrar’s office under the pretext that she was to sign some papers in connection with the creation of a mortgage of the property as security for the loan being availed by her son-in-law. Thus, the defendant in O.S. No. 1/2019 of the Sub Court, Kannur is said to have managed to obtain a sale deed executed in respect of the property belonging to the plaintiff which is scheduled in that suit. The plaintiff claims to have instituted the above suit for declaration of the said document as void, immediately after getting knowledge about the actual nature of Document No. 100/2016 which she executed before the S.R.O. Anjarakandy. The parties went for trial, and the case was posted for judgment by the learned Sub Judge after hearing both sides. It is at that stage that the plaintiff filed I.A. No. 8/2023 seeking amendment of the plaint for the limited purpose of altering the relief prayed for as one for cancellation of the document, and for making consequential changes in respect of the valuation of the suit. The learned Sub Judge, as per order dated 24.01.2023, allowed the application and directed the plaintiff to carry out the amendment within two days. It is the above order which is under challenge in this petition filed under Article 227 of the Constitution of India by the defendant in O.S. No. 1/2019 of the Sub Court, Kannur.

3. Heard the learned counsel for the petitioner and the learned counsel for the respondent.

4. The impugned order of the learned Sub Judge is assailed by the learned counsel for the petitioner by relying on the embargo contained in the proviso to Order VI Rule 17 of the Code of Civil Procedure. It is argued by the learned counsel that the rigour of the proviso to Order VI Rule 17 C.P.C. against permitting amendment after the commencement of trial cannot be watered down unless there are compelling circumstances to show that inspite of due diligence the plaintiff was not in a position to raise the matter before the commencement of trial. Accordingly, it is pointed out that the learned Sub Judge went wrong in allowing the amendment without adverting to the question whether, despite due diligence the plaintiff was not in a position to seek the above amendment at any time before the commencement of trial. It is further argued that the impugned order of the trial court is totally silent on the above point regarding the exercise of due diligence by the plaintiff for seeking amendment which is now requested at the fag end of the trial.

5. Per contra, the learned counsel for the respondent would argue that the element of applying due diligence in seeking amendment earlier, is implied in this case, taking into account of the fact that the plaintiff, who is an age old lady, cannot be expected to know the intricacies of law relating to the reliefs of declaration of a document as void and a request for cancellation of such document. The learned counsel for the petitioner and the learned counsel for the respondent have relied on various decisions of the Apex Court and this Court on the question as to what amount to ‘due diligence’ as envisaged in the proviso to Order VI Rule 17 of the Code of Civil Procedure. I do not propose to inflate this order by referring to all those decisions