Strict 'Due Diligence' Essential for Post-Trial Plaint Amendments Under O6 R17 Proviso; Illiteracy No Excuse If Facts Known: Bombay High Court - 2025-05-13

Bombay High Court Sets Aside Trial Court Order Allowing Post-Trial Plaint Amendment, Cites Lack of Due Diligence

Nagpur Bench (implied): In a recent judgment, the Bombay High Court, presided over by Justice S.M.Modak , overturned a trial court's decision that had permitted a plaintiff to amend her plaint after the trial had already commenced. The High Court emphasized that under the proviso to Order 6, Rule 17 of the Code of Civil Procedure, 1908 (CPC), the paramount consideration for allowing such amendments is "due diligence," a test the plaintiff failed to meet despite claims of illiteracy and recent document acquisition.

Case Background

The case originated from Regular Civil Suit No. 140 of 2015 before the Civil Judge, Junior Division, Khandala. The plaintiff sought legal recourse concerning property disputes. After the issues were framed on February 15, 2019, and the plaintiff had testified and undergone cross-examination, she filed an application (Exhibit-64) in 2022 seeking to amend her plaint. The proposed amendment aimed to introduce details challenging the validity and binding nature of specific sale deeds executed by Defendant No. 1 in 1999 and 2008 concerning parts of the suit property.

Trial Court's Decision

The trial court, in its order dated April 29, 2023, allowed the amendment. The primary reasons cited were the plaintiff's advanced age and illiteracy, her claim of obtaining certified copies of the sale deeds only recently, and the perceived necessity of the amendment for the "appropriate and final adjudication of the real controversy" between the parties. The trial court acknowledged that the amendment was sought post-commencement of the trial and referred to Order 6, Rule 17 CPC.

Arguments Before the High Court

The defendants (Petitioners in the High Court) challenged the trial court's order via a Writ Petition. Their counsel, Advocate Shri. Bodake , argued:

1. Lack of Due Diligence: The plaintiff knew about the sale deeds from the outset, having mentioned them in the original plaint (Para 4). The defendants had explicitly raised the issue of non-joinder of parties related to these deeds and the plaintiff's failure to seek their cancellation in their written statement (Paras 2 & 10).

2. Limitation: The challenge to sale deeds from 1999 and 2008, sought via amendment in 2022, was likely barred by limitation.

3. Proviso to O6 R17: The strict condition of demonstrating "due diligence" under the proviso was not met.

The plaintiff's counsel (Respondent No. 1), Advocate Shri. Kenjale, defended the trial court's order, arguing:

1. Plaintiff's Circumstances: Her age and illiteracy explained the delay.

2. Necessity: The amendment was crucial for deciding the real controversy.

3. Precedents: Cited judgments like Abdul Rehman v. Mohd. Ruldu and Chakreshwari Construction Pvt. Ltd. v. Manohar Lal , emphasizing that amendments should be allowed to minimize litigation and decide core issues, even based on averments in the written statement.

High Court's Rationale: The 'Due Diligence' Test is Paramount Post-Trial

Justice Modak meticulously analyzed the requirements of Order 6, Rule 17 CPC, particularly its proviso. The Court observed:

"The test of deciding the real controversy is applicable when the amendment is asked for prior to the commencement of the trial. After commencement of the trial, the only test of due diligence is to be seen. This proviso is added only for curtailing the vexatious amendments."

The High Court found that the plaintiff could not demonstrate due diligence despite her claims. Key findings included:

* Prior Knowledge: The plaintiff was aware of the sale deeds, the land sold, the consideration, and subsequent mutations when filing the suit in 2015, as evidenced by her own plaint.

* Opportunity Missed: The defendants' written statement explicitly flagged the issue of the un-challenged sale deeds, providing a clear opportunity for the plaintiff to act diligently much earlier.

* Delay: Seeking amendment in 2022 for deeds from 1999/2008, well after the suit's filing in 2015 and commencement of trial, showed a significant lack of diligence.

* Illiteracy Not an Absolute Excuse: While considering the plaintiff's circumstances, the court found that her prior knowledge of the essential facts (sale deeds existence) negated the claim that illiteracy or late acquisition of certified copies justified the delay under the "due diligence" standard.

The Court distinguished the precedents cited by the plaintiff, noting differences in factual matrices (e.g., evidence not started, due diligence shown). It found the facts did not support the plaintiff's case for amendment under the strict post-trial commencement rules.

Decision

Concluding that the trial court erred in allowing the amendment without adequately considering the mandatory due diligence requirement, the High Court allowed the Writ Petition.

Order:

1. The Writ Petition was allowed.

2. The trial court's order dated April 29, 2023 (Exhibit-64) was set aside.

3. The plaintiff's application for amendment of the plaint was dismissed.

The operation of the High Court's order was stayed for three weeks upon the plaintiff's request. The ruling underscores the stringent application of the "due diligence" test for any amendments sought after a trial has begun.