IMPORTANT POINT
Amendment of Plaint – Test of deciding real controversy is applicable when amendment is asked for prior to commencement of trial—After commencement of trial, only test of due diligence is to be seen.

JUDGMENT

S.M. Modak, J.—The only issue arisen in this Writ Petition is, whether the trial Court was justified in allowing the Application filed by the Plaintiff for amendment of the Plaint particularly when the trial has commenced.

2. By consent, the Writ Petition is taken for final hearing at an admission stage.

3. I have heard learned Advocate Shri. Bodake for the Petitioners / Defendant Nos.1 to 3 and 5 to 8 and also heard learned Advocate Shri. Kenjale for the Respondent No.1 / Plaintiff.

4. It is an undisputed fact that the trial has commenced. The issues are also framed on 15th February 2019. It is on Page No.139. It is also undisputed fact that the Plaintiff has entered into the witness-box and she has been cross-examined. The only reason for allowing the Application for amendment is the Plaintiff is aged lady and she is illiterate and she got the certified copies of the sale-deed recently.

5. The amendment Application is on Page No.156. By way of amendment, the Plaintiff wants to bring on record, how the sale-deeds executed by Defendant No.1 in favour of various persons are not binding on her. The present Petitioners have opposed that prayer on the ground of limitation, so also, on the ground that it does not fit within the proviso to Order 6, Rule 17 of the Code of Civil Procedure, 1908 (“CPC”).

6. The trial Court allowed the amendment as per the order dated 29th April 2023 (Exhibit-64). The reasoning find place in Para Nos.8 and Para No.9. As said above, predominantly, it was allowed because the Plaintiff is an illiterate lady and amendment is required for deciding the controversy between the parties and it is necessary for appropriate and final adjudication of the real controversy.

7. The trial Court is fully aware that this amendment was moved after commencement of the trial and provisions of Order 6, Rule 17 are also quoted in the order.

8. According to Mr. Bodake, there is no due diligence. It is for the reason that the Plaintiff has pleaded about these sale-deeds in Para No.2 of the Plaint and even, in the Written Statement filed by the Defendant No.1, they have taken a plea about non joinder of necessary party (Para No.2) and they have also taken a plea that no declaration is sought about those sale-deeds. (Para No.10).

9. Both of them relied upon few of the judgments.

10. Learned Advocate Mr.Bodake relied upon the observations in case of Ashok Daga Patil v/s. Daga Yadav Patil and others, 2003 (1) Mh.L.J. 686. The learned Single Judge of this Court has disallowed the amendment on the ground of limitation because if the Plaint is amended, it relates back to the date of filing of the Suit.

11. Whereas, learned Advocate Mr.Kenjale relied upon the following judgments:-

(i) Abdul Rehman and Another v/s. Mohd. Ruldu and Others, (2012) 11 Supreme Court Cases 341

The Hon’ble Supreme Court has emphasised on allowing the amendment, if it will minimises the litigation. In that case, there was an averment in the Written Statement and on the basis of said averment, an amendment was sought by the Plaintiff. (Para No.12).

(ii) Mohinder Kumar Mehra v/s. Roop Rani Mehra and Ors., AIR 2017 SUPREME COURT 5822

In that case, the issues were framed and the Suit was fixed for recording of evidence but the evidence is not started. (Para No.10). On this background, an Application for amendment was moved. The amendment pertains to claiming the share in the sale-proceeds received by Defendant No.1. On the basis of these facts, it was allowed and it was observed that “there is a relief sought for declaration of the sale-deed and what is prayed by way of amendment is, only share in the sale-proceeds. That is why, the issue of limitation has to be decided at the time of final trial.

(iii) Chakreshwari Construction Pvt. Ltd. v/s. Manohar Lal, 2017 (5) Mh.L.J. 195

Wherein, the Hon’ble Supreme Court has laid down certain principles for deciding the amendment Application. (Para No.14). According to Mr.Kenjale, if these principles are considered