Courts should liberally allow amendments to pleadings in civil proceedings unless serious injustice would result.

This application is filed by the Defendant no.1 for the following reliefs:

The Court:

a) Leave be granted to the defendant No. 1 to amend the written statement in the manner shown in Red ink in the copy of written statement being Annexure ‘B’ hereto.

b) The department be directed to carry out the amendment within 2 weeks from the date of the order to be made herein and/or within such further time as this Hon’ble Court may direct.

c) Leave be granted to the defendant No. 1 to re-verify and re-affirm the written statement within such time as this Hon’ble Court may direct.

d) Ad-interim order in terms of prayers above.

e) Such further or other orders as to this Hon’ble Court may seem fit and proper.

It is the contention of the petitioner/defendant that after filing of written statement the said original plaintiff Narayan Prasad Chowdhury, since deceased entered into a Memorandum of Settlement on 23rd March 1998 whereby he admitted that the allegations regarding the Physical2 a nd mental condition of the said Bhagwati Prasad Chowdhury made in instant suit were unfortunate and confirmed that the said Bhagawati Prasad Chaudhury was neither a person of consumed mind nor was unable to look after himself or to make his own judgment. By the said Memorandum of Settlement the original plaintiff acknowledged that the defendant no-2 was legally and validly adapted by the said Bhagwati Prasad Chowdhury.

It is contended that the said fact has a vital bearing in adjudication of the instant suit and the proposed amendments are formal in nature and if allowed will not change the nature of the suit.

The application is opposed by the Plaintiffs by filing affidavit. It is the contention of the plaintiffs that the purported document dated 23rd March 1998 was within the knowledge of the defendants on the date of purported execution of the said document. Hence the defendants were admittedly aware and had full knowledge with regard to the said document for the case 27 years and the prayer for amendment made after almost 27 years cannot be allowed.

The defendant no-1 by filing the affidavit in reply has denied the contentions of the plaintiffs by contending that the plaintiffs have not taken any steps to get the suit heard. It is also contended that the amendment if allowed will not cause prejudice to the plaintiffs.

Heard Learned Advocates for the parties. Perused the petition filed and materials on record. Before proceeding to decide the material in issue it is necessary to consider the provision relating to amendment as provided under Order VI Rule 17 of the Code of Civil Procedure .

Order VI Rule 17 of the Code of Civil Procedure Provides as follows:

Rule 17. Amendment of pleading- The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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 3t he real questions in controversy between the parties.

Provided that no application for amendment shall be allowed after 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.

In the instant case trial has not commenced thus liberal view should be taken to consider the prayer for amendment.

In the case of Baldev Singh and Ors VS Manohar Singh and Anr reported in AIR-2006 S.C. 2832 the Hon’ble Apex Court observed as follows:

“17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in th