Hon'ble CHAUHAN, J.—The defendant-petitioner, Ramesh Chand Sharma, has challenged the order dated 11.1.2013 filed by the Additional District Judge No.18, Jaipur Metropolitan, Jaipur, whereby the learned Jude has rejected his application filed under Order 6 Rule 17 read with Section 151 CPC, for permitting certain amendment in the written-statement filed by him.

2. The brief facts of the case are that in April 2009 the plaintiff-respondent, Banshidhar Sharma, filed a civil suit against the petitioner. Subsequently, the petitioner filed his written-statement wherein in para 13 he has typed the words ^^jlwe c<+k p<+k dj** (valuation of the property is too high), instead of the words ^^jlwe c<+k p<+k dj** (lesser valuation of the property). Since the valuation of the property would determine the court-fees to be paid by the plaintiff-respondent, and since the petitioner claimed that he had discovered this typographical error much later, he filed an application under Order 6 Rule 17 CPC. However, by order dated 11.1.2013 the learned Judge has dismissed his application. Hence, this petition before this Court.

3. Mr. Arvind Gupta, the learned counsel for the petitioner, has vehemently raised the contention that the application had been filed for correcting a typographical mistake. Moreover as the court-fees to be submitted by the plaintiff-respondent would depend on the valuation of the property, and as such payment of court-fees would have an impact on the maintainability of the civil suit, the amendment proposed by him should have been allowed. Moreover, such an amendment would not adversely affect the interest of the plaintiff-respondent. In order to buttress this contention, the learned counsel has relied on the case of Usha Balashaheb Swami & others vs. Kiran Appaso Swami & others ((2007) 5 SCC 602). Lastly, he has contended that even if it is held that the application was filed after an inordinate delay, the plaintiff-respondent can be compensated by imposition of cost. In order to buttress this contention, the learned counsel relied on the case of B.K.N. Pillai vs. P. Pillai & another (AIR 2000 SC 614).

4. Heard the learned counsel, perused the impugned order and considered the case law cited at the Bar.

Order 6 Rule 17 CPC is as under:-

“Amendment of pleadings.—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.

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.”

A bare perusal of the provision clearly reveals that it can be divided into three parts: firstly, part one which bestows a discretion upon the Court to allow a party to alter or to amend his pleadings. Secondly, the Court is bound to permit an amendment if the amendment is necessary for the purpose of determining the real questions in controversy between the parties, and lastly if the party, seeking an amendment, establishes his due diligence in making a prayer for amending of his pleading.

In catena of cases, the Hon'ble Supreme Court is of the opinion that in case the amendment were germane to the controversy involved, in case it does not cause any injustice to opposite party, in case it does not change the nature of the suit, then the amendment should be allowed. However, the amendment cannot be for the asking of a party. The Court is duty bound to apply the test prescribed both by Order 6 Rule 17 CPC and by the test introduced by the Apex Court while interpreting the said provision.

According to the proviso, the party seeking an amendment has to establish his “due diligence” in making the prayer. For the privilege to amend the pleadings cannot be u

Click Here to Read the rest of this document