Order VI Rule 17 CPC | 'Due Diligence' Test Not Mandatory For Every Amendment Of Plaint Sought After Trial Commences: Karnataka High Court

The Karnataka High Court (Dharwad bench) has held that amendment of plaint under Order VI Rule 17 CPC is permitted even after commencement of trial despite non fulfilment of due diligence test, adding that the test does not have universal application and in appropriate cases such amendment is permitted.

Justice Anant Ramnath Hegde was hearing a plea challenging the petitioners (plaintiffs) application seeking amendment of the plaint, filed 10 years after the presentation of the plaint and also after commencement of trial.

Referring to Order VI Rule 17 (Amendment of pleadings) CPC the court said that it appeared that in certain circumstances, the applications filed for amendment of plaint post commencement of trial "need not pass the test of due diligence contemplated under proviso to Order VI Rule 17".

Proviso to Order VI Rule 17 CPC states that an application seeking amendment is not permissible unless the person seeking amendment satisfies the Court that, despite due diligence, the party could not seek amendment before commencement of the trial.

"The question is, to what extent, the proviso curtails the power of the Court to amend pleadings after the commencement of trial...Whether the application seeking amendment, post-commencement of trial, is to be allowed or not has to be decided on the “nature of amendment sought” and not necessarily on the “due diligence test” at least in respect of applications seeking certain types of amendment, if not all. It does not mean that the “due diligence” test has no application under proviso to Order VI Rule 17 of the Code. The relevance of “due diligence test” is dependent on the nature of the amendment sought and other attending circumstances, and not just dependent on the sole factor as to whether trial has commenced or not at the time of filing application seeking amendment".

The court also referred to the purpose of the provision and noted that Lawmakers felt that the provision of Order VI Rule 17 as it existed before 2002 amendment, was misused to delay the hearing on merits of the suit or proceedings, and to prevent such misuse the proviso was introduced.

"The principles of liberal construction still apply in those situations where the application seeking amendment of pleading is filed to avoid multiplicity of litigations and to resolve all controversy between the parties, notwithstanding the proviso. However, the proviso cannot be made nugatory; it has a purpose to serve in appropriate cases...The due diligence test contemplated in proviso to Order VI Rule 17 of the Code, cannot have universal application on every application seeking amendment of pleadings, filed after commencement of trial. In appropriate cases, even if due diligence test is not satisfied, the Court's power to permit amendment of pleadings is not taken away," it added.

The high court thereafter listed instances where amendment of pleadings can be allowed without the “due diligence test,” post commencement of trial:

• correct typographical errors in the dates of events, documents, etc.;
• correct property number, extent, location, or discrepancies in the boundary or any other misdescription of the property;
• insert events and developments that have taken place post-filing of the suit and which have a bearing on the final decision;
• incorporate a prayer owing to a subsequent event that has taken place during the pendency of the suit, keeping open the question of limitation;
• add a few additional facts or furnish better particulars to the facts already pleaded or add facts in support of the relief already claimed;
• seek relief in the alternative, which is in the nature of a lesser relief than the one already claimed.
• seek additional relief or relief ancillary to the main relief when the relief sought by way of amendment is available based on the pleadings already made.

The court also said that had the parliament intended to create two different categories of applications seeking amendment of pleadings–one before commencement of trial, and one after commencement of trial–with two different yardsticks for deciding such applications, and rigid test in all applications post commencement of trial, then the Parliament probably would not have retained the expression "at any stage of the proceedings” in Order VI Rule 17.

However that was not the case and the provision “at any stage of the proceedings” is still retained in 2002 amendment.

"This is one of the reasons to hold that proviso to Order VI Rule 17 of the Code cannot be applied with same rigour to sail through “due diligence” test in every application seeking amendment, post commencement of trial," the court added.

The petitioners' had filed a suit for to declare that the sale deed dated 24.04.2009 executed by petitioner no. 1's father in favour of the defendants is cancelled. They also sought to restrain the defendants from interfering with the petitioners' possession.

After the evidence of Plaintiff's witness no. 2, the petitioners moved an application to incorporate a plea that they were dispossessed from the property on 29.03.2022 i.e., during the pendency of the suit. In addition, they also sought to include a prayer for possession.

Trial Court dismissed the application noting that the petitioners did not satisfy that, despite due diligence, they could not raise the plea before the commencement of the trial. It also noted that the plea was filed 10 years after the institution of the suit and was belated.

With respect to the question of 10 year gap the high court held petitioners application is in time either under Article 64 or 65 of the Limitation Act, as application is filed within 12 years from the date on which the respondents assert to be in possession.

Hence, the application could not have been dismissed on the premise that it was filed after 10 years from the date of the suit. Once the application is found to be in time, in every case seeking amendment belatedly, the number of years spent before filing the application may not matter, but the nature of the amendment may matter, the court added.

"The Trial Court was carried away by the 10-year gap between the date of the suit and the date of filing the amendment application while dismissing the application," the high court said.

The court also held that as a matter of rule, one cannot urge that every amendment that seeks to nullify an admission in pleading or evidence is impermissible.

The court said that even if the admission in cross-examination that petitioners were dispossessed in 2014 is accepted as correct, the said admission does not take away the right of the petitioners to sue for possession.

The court allowed the plea subject to the petitioners paying Rs 7000 as cost to the respondent for amendment of the plaint.

Case title: SHRI MOHAMMADRAFI and Anr. v/s BANDENAWAZ and Others

WRIT PETITION NO. 108512 OF 2025

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