Amendments to pleadings post-trial require showing of due diligence, and must not alter the fundamental nature of the case, or cause undue prejudice to the opposing party.

JUDGMENT :

(Sanjay Kumar Dwivedi, J.)

Heard the learned counsel for the petitioner as well as the learned counsel appearing on behalf of the Opposite parties no.1 and service of notice on behalf of the rest of the opposite parties has been dispensed with as they are found to be formal O.Ps.

2. This petition has been filed under Article 227 of the Constitution of India wherein the prayer has been made for setting aside the order dated 03.02.2024 passed by learned Civil Judge, Senior Division-IV, Jamshedpur in Original Suit No.162 of 2010 whereby the petition filed by the plaintiff/O.P.No.1 under Order VI Rule 17 CPC seeking amendment in the suit has been allowed by the learned court at the time of final argument of the suit.

3. Mr. Abhishek Kumar Dubey, the learned counsel appearing on behalf of the petitioner /defendant submits that the Original Suit No.162 of 2010 was instituted by the plaintiff /O.P.No.1 in the court of learned Sub Judge-I Jamshedpur in seeking declaration of registered sale deed no.3961 dated 22.5.2010 was executed by the O.P.No.2 in favour of the petitioner/defendant no.3 as void. He submits that after notice, the defendants and others have appeared and filed their written statement and suit is of the year 2010 and it has proceeded further and reached at the stage of argument and at that stage, the petition under Order VI Rule 17 CPC was filed for amendment with a prayer for recovery of possession be added in the event of plaintiff be dispossessed the petitioner or his representative. He submits that the same is barred by more than 13 years. He further submits that due diligence is not shown in light of proviso of Order VI Rule 17 CPC and in view of that the learned court has erred in allowing the said petition. He relied in the case of Vidyabai and Others v. Padmalatha and Another reported in (2009) 2 SCC 409 and he refers to paragraph no.10 and 11 which are quoted below:

“10. By reason of the CIVIL PROCEDURE CODE (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under: “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.” It is couched in a mandatory form. The court’s jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.

8. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfill the said pre-condition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to ‘commencement of proceeding’.”

4. On the same line, he further relied in the case of Revajeetu Builders and Developers v. Narayanaswamy and Sons and Others reported in (2009) 10 SCC 84 and refers to paragraph no.63 which is quoted below:

“63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) Whether the amendment sought is im- perative for proper and effecti