IMPORTANT POINT
Amendment of plaint – Burden is on person who seeks amendment after commencement of trial to show that inspite of due diligence, such an amendment could not have been sought earlier.

JUDGMENT

The petitioners are the defendants and the respondent is the plaintiff in the suit O.S.No.92/2011 on the file of the Sub Court, Ernakulam.

2. The suit is instituted for granting a decree of declaration that the plaintiff has got absolute title, ownership and possession over the property described in the plaint C schedule and also a decree of prohibitory injunction restraining the defendants from trespassing into that property and committing any acts of waste therein. The plaintiff has also sought a decree for fixation of the boundaries of the plaint C schedule property.

3. After commencement of the examination of witnesses in the suit, the plaintiff filed an application (Ext.P5) under Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short ‘the Code’) for amendment of the plaint.

4. By way of amendment of the plaint, the plaintiff sought correction of the extent of the property mentioned in the plaint C schedule and also incorporation of new survey numbers of the property. The plaintiff also prayed for insertion of a new schedule as plaint D schedule in the plaint containing description of the property of the defendants.

5. The defendants filed objection to Ext.P5 application raising various contentions.

6. As per Ext.P7 order dated 11.12.2017, the trial court allowed Ext.P5 application.

7. The defendants have filed this original petition under Article 227 of the Constitution of India, challenging the legality and propriety of Ext.P7 order.

8. Heard learned counsel for the petitioners as well as the respondent.

9. Ext.P7 order passed by the court below is cryptic and laconic. Ext.P7 order, in its entirety, is extracted below.

“Heard both sides and perused the case records. It is true that trial has already commenced in this suit. It is also noticed that the defendants have filed I.A.2529/15, which is an application for appointment of an Advocate Commissioner to measure out the property of the 1st defendant.

The suit is for declaration, fixation of boundary and injunction.

Considering the rival contentions, this court is of the view that the amendment sought for is to be allowed for the proper adjudication of the lis involved in the suit.

Hence this I.A is allowed. Carry out amendment within 7 days.”

10. Reasons form the soul of a judicial decision. Reasons substitute subjectivity by objectivity. Absence of reasons renders exercise of judicial review virtually impossible in adjudging the validity of the decision. Reasons reflect application of mind and avoid arbitrariness. The need for a speaking order is a facet of fair procedure.

11. Ext.P7 order is devoid of reasons and it is liable to be set aside solely on that ground.

12. Order VI Rule 17 of the Code provides that, 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. The proviso to this rule states that, no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial.

13. The proviso to Order VI Rule 17 of the Code, to some extent, curtails the absolute discretion of the court to allow amendment at any stage of the suit. If the application for amendment is filed after commencement of trial, it has to be shown that inspite of due diligence, such amendment could not have been sought earlier. When the application for amendment filed by a party to the suit is after commencement of trial, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso to Order VI Rule 17 of the Code.

14. When does the trial in a suit commence? This issue has been considered by the Apex Court in Kailash v. Nanhku : AIR 2005 SC 2441, Baldev Singh v. Ma