Courts should allow amendments to pleadings post-commencement of trial if necessary for proper adjudication, and not penalize litigants for counsel's inadvertence.

JUDGMENT :

BIPIN GUPTA, J.

1. The present writ petition has been filed assailing the order dated 01.09.2023 passed by the learned Commercial Court No. 2, Jaipur Metropolitan-II in Civil Suit No. 94/2023 (CIS No. 122/2020), whereby the application filed by the plaintiff-petitioner under Order VI Rule 17 read with Section 151 CPC seeking amendment of the plaint has been rejected.

2. The controversy in a narrow compass is that the plaintiff- petitioner instituted a summary suit on 22.01.2020 against the defendant-respondent for recovery of a sum of Rs.1,16,99,746/- inclusive of interest at the rate of 24%, arising out of the supply of goods.

3. Upon service of summons, the defendant-respondent filed his written statement, denying the averments made in the plaint and contending, inter alia, that the goods supplied by the plaintiff were not of the requisite quality, due to which the same were returned and the payment was adjusted. Subsequently, the plaintiff-petitioner filed a rejoinder, controverting the stand taken by the defendant-respondent.

4. On the basis of the pleadings of the parties, the learned Trial Court framed the issues. The plaintiff-petitioner led his evidence by way of affidavit and the cross-examination of PW-1 commenced. However, at this stage, the plaintiff-petitioner moved an application under Order VI Rule 17 CPC, seeking amendment of plaint to incorporate pleadings in the form of clarification/elaboration relating to jurisdiction of the Court, limitation, valuation of the suit and cause of action stating that the same were not elaborated due to inadvertent and bonafide mistake on account of drafting.

5. The said application was opposed by the defendant-respondent on the ground that the trial proceedings of the suit had already commenced and that the application was merely a tactic to delay the suit proceedings.

6. The learned Trial Court, vide impugned order dated 01.09.2023, rejected the application preferred by the plaintiff-petitioner, observing that in view of the provision to Order VI Rule 17 CPC, no amendment of the pleadings shall be allowed after the commencement of the trial proceedings unless the Court comes to a conclusion that despite due diligence the party could not raise the issue.

7. Hence, the present writ petition.

8. Learned counsel for the petitioner contended that the application seeking amendment of the plaint cannot be said to be belated merely because the examination-in-chief of PW-1 had been tendered and his cross-examination had commenced. He submitted that the evidence of PW-1 had not even been completed and, therefore, the trial could not be said to have substantially progressed so as to non-suit the petitioner on the ground of delay.

8.1. He further submitted that the amendment sought at this stage is purely explanatory and clarificatory in nature, and merely intends to bring on record certain material particulars in relation to cause of action, valuation of the suit, jurisdiction of the Court and limitation, which are foundational issues required to be examined fo