The Supreme Court has observed that the amendment of pleadings at the stage of evidence can be allowed only if the Court is satisfied that in spite of due diligence, the party could not introduce amendment before commencement of the trial.
In a partition suit, the evidence had already begun and at that stage, the plaintiff filed application seeking amendment of plaint. The contention taken by the defendant before the Apex Court was that, in view of Order VI Rule 17 of the Code of Civil Procedure, 1908 the amendment could not have been considered unless the Court return a finding that in spite of due diligence, the party could not have raised the matter before the commencement of the trial.
Order VI Rule 17 of the Code of Civil Procedure 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 reads as follows:
Provided that no application for amendment shall be allowed after the 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.
Interpreting this proviso, the Supreme Court in Vidyabai & Ors. v. Padmalatha & Anr. [(2009) 2 SCC 409 ] observed as follows:
"It is primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction in a case of this nature is limited. Thus unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."
Agreeing with the contention, the bench of Justice Ashok Bhushan and Justice MR Shah observed that without their being any finding by the Court as contemplated by Order VI Rule 17 proviso, the Court ought not to have allowed the amendment.
"In the present case, the Civil Judge has not returned any finding that the Court is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial….There being no finding by the Court that the Court is satisfied in spite of due diligence, the party could not introduce amendment before commencement of the trial, the order 2 of the Trial Judge is unsustainable."
Therefore, the Court dismissed the amendment application.
Case name: PANDIT MALHARI MAHALE vs. MONIKA PANDIT MAHALE
Case no.: CIVIL APPEAL NO. 189 of 2020
Coram: Justice Ashok Bhushan and Justice MR Shah