After Trial Has Commenced, Amendments To Pleadings Cannot Be Allowed Merely To Remove Ambiguity: Patna High Court
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In a recent judgement, a bench comprising Justice Sunil Dutta Mishra of the Patna High Court has held that the onus lies on the parties seeking an amendment to a suit to satisfy the Court that in spite of due diligence, they could not have raised the matter before the commencement of the trial.
The court further held that amendments are not to be allowed merely because they are clarificatory in nature or remove any ambiguity after trial has commenced.
This was a case where the plaintiffs had filed a suit for the partition of a land as well as a declaration that the gift deed was void, ineffective, unenforceable against the petitioners. The issues framed in the suit were based on the pleadings and written statements filed by both the parties.
The suit was pending at the stage of final arguments when the petitioners discovered that a typographical error had been made in the area as well as the number of plots of the suit land. They then filed an amendment petition under Order 6 Rule 17 of the C.P.C., which was dismissed by the trial court. The petitioners then preferred an appeal before the High Court.
Submissions of the Applicant’s Counsel:
The Applicant submitted that the trial court had failed to consider that the proposed amendment was formal in nature and would not change the nature of the suit. The further argued that if the amendment was not allowed, it would give rise to multiplicity of litigation. Alternatively, if it was allowed, it would cause no prejudice to the respondents.
Submissions of the Respondent’s Counsel:
The Respondents countered by submitting that through the proposed amendment the petitioners want to withdraw their admission of fact which will change the nature of the suit at a belated stage. They further submitted that due diligence had not been shown by the petitioners and that they had not given any explanation of the delay in filing amendment petition at the stage of argument in a suit that is over 31 years old.
Taking note of the trial Court's observation, Justice Mishra stated, "the plaintiffs want to change in the schedule which is subject matter of partition and also want to change its area. It is also observed that there was sufficient time to the plaintiffs to bring the amendment if required but bringing of amendment at the stage of final argument without stating any reason cannot be allowed and the amendment petition is a misuse of process of law and has been filed with mala fide. The proposed amendment will change the total area of suit land and also its Khata and Plot number, on these grounds the trial Court rejected the amendment application vide the impugned order which is legal, requires no interference by this Court under Article 227 of the Constitution."
Justice Mishra, taking reliance of the judgement of the Supreme Court in the case of J. Samueland Others Vs. Gattu Mahesh and Others reported in (2012)1 PLJR SC 412 observed, "the entire object of amendment to Order VI Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other’s case. It also helps checking the delay in filing the application."
Justice Misra also observed that, "the claim of typographical error / mistake is baseless and cannot be accepted. In fact, had the person who prepared the plaint, signed and verified the plaint showed some attention, this omission could have been noticed and rectified there itself. In such circumstances, it cannot be construed that due diligence was adhered to in any event, omission of mandatory requirement running in three to four sentences cannot be a typographical error as claimed by the plaintiffs."
Placing reliance on the case of Sayed Hasibuddin Vs. Syed Md. Akram Hussain and Others (2006) 4 PLJR 260, the court observed that the party requesting an amendment must now prove to the Court that they could not have raised the matter before the trial began, despite being diligent. Amendments cannot be made just to clarify or remove ambiguities during the trial. This represents a significant shift in the Court's power to allow amendments once the trial has started.
The court further made note of the fact that in the present case, "there is no explanation of due diligence for filing amendment petition at the stage of final argument and the only excuse given is that at the time of preparation of it came to the knowledge that due to mistake of typist, some wrong facts have been typed. This is contrary to the due diligence clause contains in the proviso of Order VI Rule 7 C.P.C. It is clear that there is no explanation of due diligence for bringing the amendment at the stage of final argument."
Upholding the decision of the trial Court, the court stated that it did not commit any error of jurisdiction calling for interference by this Court, and dismissed the Application.
Case Title: Shiv Kumar and Ors. vs Anil Bhagat and Ors. Civil Miscellaneous Jurisdiction No. 246 of 2018