Gujarat High Court
Champaben D/O Govanbhai Kalabhai Wd/O ... vs Khushmanbhai Chandubhai Since Decd ... on 20 March, 2025
NEUTRAL CITATION
C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025
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Reserved On : 11/03/2025
Pronounced On : 20/03/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16214 of 2024
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 16214 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
yes
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CHAMPABEN D/O GOVANBHAI KALABHAI WD/O BACHUBHAI
GOMANBHAI
Versus
KHUSHMANBHAI CHANDUBHAI SINCE DECD THROUGH LHR & ORS.
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Appearance:
MR MANAN A SHAH(5412) for the Petitioner(s) No. 1
MR. AADIT R SANJANWALA(9918) for the Respondent(s) No. 1.1,1.2,1.3,1.4
NOTICE SERVED BY DS for the Respondent(s) No.
10.1,10.2,10.3,10.4,10.5,10.6,11.1,11.10,11.11,11.2,11.3,11.4,11.5,11.6,11.7,
11.8,11.9,12.1,12.2,12.3,12.4,2,3.1,3.2,3.3,3.4,4,5,6,7.1,7.2,9
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
CAV JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. Aditya R. Sanjanwala waives service of notice of rule on behalf of respondents No. 1.1 to 1.4.
2. Though served, none appeared on behalf of other respondents. As such their presence would not be required Page 1 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined for adjudication of writ application as contesting defendants are appeared through learned advocate Mr. Sanjanwala.
3. With the consent of the learned advocates appearing for the respective parties and so also issue involved in the present case, the matter is taken up for final hearing.
4. The present writ application is filed under Article 227 of the Constitution of India seeking following reliefs:-
"(A) YOUR LORDSHIPS be pleased to issue appropriate writ, order or direction, quashing and setting aside the impugned order dated 25.10.2024 passed by Ld. 11th Additional Civil Judge, Surat on application below Exh.93 in Regular Civil Suit No.103 of 2014, in the interest of justice; Annexure A. Ecollo. L (B) YOUR LORDSHIPS be pleased to stay the implementation, operation and execution of the impugned order dated 25.10.2024 passed by Ld. 11th Additional Civil Judge, Surat on application below Exh.93 in Regular Civil Suit No. 103 of 2014, pending the admission, hearing and final disposal of this petition; Annexure- A' CColl).
(C) YOUR LORDSHIPS be pleased to grant such other and further reliefs, as may be deem fit by this Hon'ble Court, in the interest of justice."
5. The parties will be referred as far as possible as per their original position in the suit.
Short facts of the case 6.1 The petitioner is original plaintiff of Regular Suit No. 103 of 2014 pending before the 11 th Additional Civil Page 2 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined Judge, Surat, whereas respondents are original defendants.
6.2 The aforesaid suit is filed seeking declaration and injunction that suit properties which are described be declared as ancestral properties and be further declared that plaintiff is lineal descendant of late Govanbhai Kalabhai. It has been further prayed that revenue entries which are mutated in relation to suit properties in revenue record on the basis of wrong pedigree be declared as null and void.
6.3 The defendants have filed the written statement opposing the suit. The issues appears to have been framed on 27.01.2021. Thereafter, suit is ripe for the evidence of plaintiff.
6.4 At that stage, before filing an examination-in-chief in lieu of oral evidence, plaintiff has filed impugned application below Exh. 93 under Order 6 rule 17 of Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC'). The plaintiff has sought for an amendment in the plaint thereby, she has sought for prayer of partition of suit properties, to add one property situated at Village - Katargam at Revenue survey No. 91/1 +2 admeasuring H-RA 1-00-68 Sq. mtr. and further sought for necessary amendment in this regard in pleading of her plaint. The plaintiff has also sought for an Page 3 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined amendment about change in revenue survey number of suit properties already shown in the plaint.
6.5 The defendants have strongly objected the impugned application by filing their objection at Exh. 96. After hearing the parties, the trial Court vide its impugned order dated 25.10.2024 has partly allowed impugned application whereby, it has granted prayer (b) of the impugned application and rest of the prayers are disallowed.
6.6 Being aggrieved and dissatisfied with the impugned order dated 25.10.2024 passed by the 11 th Additional Civil Judge, Surat below Exhibit 93 in Regular Civil Suit No. 103 of 2014, the present writ application is filed.
Submission of the petitioner- plaintiff 7.1 Learned advocate Mr. Manan A. Shah for petitioner- original plaintiff would submit that the impugned order passed by the Trial Court to the extent partly rejecting the amendment application Exh.93 is illegal, arbitrary, perverse, capricious, contrary to the facts and law and therefore, the same is liable to be quashed and set aside.
7.2 Learned advocate Mr. Shah for the petitioner would further submits that the trial Court has erred in not Page 4 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined exercising the powers under Order 6 rule17 of CPC and partly rejecting the application Exh.93 filed by the respondents-plaintiffs for amendment. In fact, considering the facts, evidence and circumstances of the case and the settled position of law, the Trial Court ought to have allowed the application Exh.93 in its entirety.
7.3 Learned advocate Mr. Shah for the petitioner would further submits that the Trial Court has failed to appreciate that the amendment application (Exh.93) essentially seeks to add one property in which the plaintiff had sought for declaration of her share and consequential prayer of partition of the property. The amendment as sought by the plaintiff does not change the nature of the suit. The plaintiff has right, title and interest in the property sought to be added by way of amendment. The controversy involved in the suit is declaration of her share in the suit properties and partition thereof. Therefore, no prejudice is likely to be caused to the defendants, if the amendment as sought for, is granted.
7.4 To buttress his argument, learned advocate Mr. Shah for the petitioner is relying upon the judgements of Hon'ble Apex Court in the case of -
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(i) Life Insurance Corporation of India Vs. Sanjeev Builders Pvt. Ltd. reported in (2022) 16 SCC 1 (relied upon Para Nos.-31, 36, 37 & 71).
(ii) Dinesh Goyal @ Pappu Vs. Suman Agarwal (Bindal) and others reported in 2024 (11) Scale 245 (relied upon Para-11, 14, 17 & 18)
(iii) Mohindra Kumar Mehra Vs. Roip Rani Mehra and Ors. Reported in (2018) 2 SCC 132 (relied upon Para-16, 17 to 20, 22 & 24 )
(iv) Revajeetu Builders & Developers Vs. Narayanaswamy and Sons and Others reported in (2009) 10 SCC 84 (relied upon Para-63)
(v) Bhavnaben Prakashbhai Patel Vs. Jayshukhben D/o Thakorebhai Legal heirs of deceased reported in 2022 (2) GLR 1471 : 2021 (0) AIJEL-HC-244174 (relied upon Para-3, 17, 28 to 30)
(vi) V. Sunitha Vs. L. Krishnamoorthy, Madras High Court, C.R.P. No. 3132 of 2022 and CMP No. 16816 of 2022, D/d. 16.03.2023 (relied upon Para-6&7) Page 6 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined
(vii) Amrit Mohan Singh Kahlon Vs. Mit Mohan Singh Kahlon reported in 2022 (1) Law Herald 811 : 2022 (3) RCR (Civil) 668 (relied upon Para-3&4).
(viii) Swatantar Kumar Gupta Vs. Animesh Gupta reported in 2022 AIR CC 62 (Madhya Pradesh High Court) (relied upon para-10 & 12).
(ix) Maddi Venkata Surya Murali Prasad Vs. Kolla Chandrasekhara Rao and ors. reported in 2023 (3) Andh LD 724 (relied upon 3, 8, 12 & 13).
(x) Rajendra and ors. Vs. Malatai and ors. reported in 2023 NCKHC-D 9069 (Karnataka High Court ) (relied upon 3, 7 &
8).
7.5 Making above submissions, it is requested that present writ application may be allowed as requested for.
Submission of the respondents No.1.1 to 1.4- defendants 8.1 Learned advocate Mr. Aditya R. Sanjanwala for the respondent No. 1.1 to 1.4- defendants would submit that suit is filed only seeking declaration and injunction and by way of proposed amendment, plaintiff now wants to seek partition Page 7 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined of suit properties, which would barred by Order 2 rule 2 of CPC.
8.2 Learned advocate Mr. Sanjanwala would further submit that granting amendment would change nature of suit as suit is for declaration and injunction which will be converted into partition if amendment granted by the Court.
8.3 Learned advocate Mr. Sanjanwala would further submit that it is settled legal position of law that by granting an amendment if nature of suit changes, such amendment should not be allowed.
8.4 Learned advocate Mr. Sanjanwala would further submit that plaintiff wants to add one new property without clarifying as to whether is it ancestral one or not, without any justification and clarification on part of the plaintiff, such property can not allow to be added at the stage when suit ripe for the evidence of plaintiff.
8.5 Learned advocate Mr. Sanjanwala has vehemently opposed amendment on the ground that the impugned application is filed after framing of issue then, a proviso to Order 6 rule 17 of CPC is applicable and in absence of any due diligence shown and explained by the plaintiff in the Page 8 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined impugned application, no error can be found in the impugned order.
8.6 Learned advocate Mr. Sanjanwala would further submit that reason best known to plaintiff for about three years after framing of issues, plaintiff yet not begin her oral evidence, in such facts situation, this Court may not interfere with the impugned order as the impugned application is filed belatedly just to delay the trial.
8.7 Learned advocate Mr. Sanjanwala would further submit that unless and until declaration has sought by the plaintiff is allowed in her favour, till then question of seeking partition of suit properties would not arise and considering this aspect also, amendment sought by the plaintiff requires to be rejected.
8.8 To buttress his argument, learned advocate Mr. Sanjanwala would refer and rely upon the judgment of the Hon'ble Apex Court in the case of -
(i) Kailash Vs. Nankhu and ors. reported in (2005) 4 SCC 480 (relied upon Para No. 13 )
(ii) Baldev Singh and Others Vs. Manohar Singh and Page 9 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined another reported in (2006) 6 SCC 498 (relied upon Para No.
17)
(iii) Ajendraprasadji N. Pandey and another Vs. Swami Keshavprakashdasji N and others reported in (2006) 12 SCC 1 (relied upon Para Nos. 2, 6, 13, 14, 20, 21, 32, 34 to 36 & 57)
(iv) Vidyabai and others Vs. Padmalatha and another reported in (2009) 2 SCC 409 (relied upon Para No. 11, 14, 15 & 19)
(v) Mohindra Kumar Mehra Vs. Roip Rani Mehra and Ors. reported in (2018) 2 SCC 132 (relied upon Para- 3, 4, 6, 7, 12, 14 , 16 & 17)
(vi) Saiyed Rashedakhatun D/o Tasadukhsain through PoA Samina Vs. Vishnubhai Ambala Patel through legal heirs and others reported in 2014 4 SCC : Online Gujarat 5527 (relied upon Para No. 33, 37 to 41 )
(vii) Kenchegowda vs. Siddegowda, reported in (1994) 4 SCC 294 (relied upon Para No. 16)
(viii) Madan Mohan Vs. R. Pandiyan reported in 1995 (3) Page 10 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined CCC 329 : (1995) 1 MLJ 275 : Manu/TN/0625/1994 (relied upon Para No.5) 8.9 Making above submissions, it is requested that present writ application may be dismissed.
9. No other and further submissions have been made by the learned advocates for the respective parties.
ANALYSIS
10. The following issues arise for consideration of this Court,
(i) Whether any jurisdictional error committed by the trial Court while adjudicating impugned amendment application filed by the plaintiff under Order 6 rule 17 of CPC by not granting all prayers as prayed in the application?
(ii) if answer to issue (i) in affirmative, whether in the facts and circumstances of the case, impugned amendment application filed by plaintiff requires to be fully allowed or not ?
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11. The trial Court has rejected prayers of plaintiff made in the impugned application except prayer (b) mainly on the following grounds i.e. (i) it is barred by Order 2 rule 2 of CPC, (ii) it changes nature of suit, (iii) it is belated amendment after framing of issues.
12. Now I would like to deal each ground separately by answering as under:-
GROUND - (i)- Barred by Order 2 rule 2 of CPC.
12.1 The suit is filed seeking declaration and permanent injunction in relation to suit properties to be declared as ancestral properties and seeking declaration that plaintiff is lineal descendant of late Govanbhai Kalabhai.
Now, by way of amendment, plaintiff is seeking additional prayer of partition of suit properties.
12.2 The trial Court has committed jurisdictional error by disallowing amendment on the ground that it is hit by Order 2 rule 2 of CPC and further unnoticed the law laid down by the Hon'ble Supreme Court of India in the case of Sanjeev Builders (supra).
12.3 Now, it is well settled legal position of law that bar of Order 2 rule 2 of CPC while considering amendment Page 12 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined application is beyond purview and scope of amendment application filed under Order 6 rule 17 of CPC. Thus, it has been held thus :-
"71. Our final conclusions may be summed up thus :
71.1 Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview.
The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. 71.2 All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC."
12.4 In view of above, impugned order suffers from jurisdictional error while rejecting the impugned amendment application on the ground that an amendment which is sought for, is barred by Order 2 rule 2 of CPC.
GROUND - (ii)- Changes nature of suit.
13.1 Learned advocate Mr. Sanjanwala for the defendants having submitted that by granting amendment, it changes the nature of suit as the suit is filed for seeking declaration and injunction whereas, after adding prayer of partition, it changes the nature and character of the suit.
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13.3 The plaintiff is claiming that suit properties are ancestral properties and she is lineal descendant of late Govanbhai Kalabhai. If amendment which is sought for is allowed, it would be in furtherance of determination of controversy involved in the suit between the parties.
13.4 The amendment sought for, is asking for partition of suit properties and by granting such amendment, it would be determining the real questions in controversy between the parties. As once declaration sought for by the plaintiff in the plaint will be granted by the trial Court, consequently, plaintiff will be entitled for partition of suit properties being declared as ancestral properties.
13.5 By granting amendment as sought for would not going to change nature of the suit as the plaintiff is required to first prove suit properties as ancestral properties then- after, prayer of partition can be considered by the trial Court. As such, it would be in the interest of parties to the Page 14 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined suit and to avoid multiplicity of proceeding in future and to further avoid a fresh suit seeking partition, amendment needs to be allowed. Once getting declaration in the present suit, it is rather more desirable to seek partition in the present suit itself instead of filing fresh suit seeking relief of partition. In fact, it would save time of parties as well as the Court and in one proceeding itself, all these issues touching the controversy between the parties will be resolved. The judgements so relied upon by learned advocate Mr. Shah would reinforced the aforesaid view. [ Ref. - V. Sunitha (supra), Amrit Mohan Singh Kahlon (supra), Swatantar Kumar Gupta (supra), Maddi Venkata Surya Murali Prasad (supra), Rajendra and ors (supra)] 13.6 Whereas, learned advocate Mr. Sanjanwala for the defendants has placed reliance upon the decision of the Hon'ble Apex Court in a case of Kenchegowda (supra) and learned Single Judge of the Madras High Court in the case of Madan Mohan (supra). As such both these decisions would not be applicable to the facts of the present case.
13.7 In the case of Kenchegowda (supra), a facts are eloquent as neither all co-sharer were joined in suit nor all joint properties were described in suit and considering peculiar facts of the case, Hon'ble Apex Court has not Page 15 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined granted relief to the plaintiff. Whereas, in present case, it is no one case that all co-sharer and or all properties are not part of suit. It is apt to refer conclusion of Hon'ble Apex Court in Kenchegowda (supra) reads as under :-
"[16] Therefore, what has been held is that the property had not been allotted in favour of the first defendant in the partition. That is very different from holding that the case of partition had not been accepted by the first appellate court. This being so, a decree for partition could not have been passed on a mere application for amendment. In fact, as rightly urged by the learned counsel for the appellant that the causes of action are different and the reliefs are also different. To hold that the relief of declaration and injunction are larger reliefs and smaller relief for partition could be granted is incorrect. Even otherwise, a suit for partial partition in the absence of the inclusion of other joint family properties and the impleadment of the other co- sharers was not warranted in law. Thus, we find no difficulty in allowing these appeals which are accordingly allowed. The judgment and decree of the trial court as affirmed by the first appellate court are restored......"
(emphasis supplied) 13.8 In the case of Madan Mohan (supra), amendment was sought for at very belated stage when the plaintiff was in witness box and as such the suit was not for seeking declaration that the suit property is an ancestral property, unlike present case. In the said case, the plaintiff and defendant both have claimed to have purchased the suit properties from the third party and in that background of facts, prayer for partition by way of amendment was refused by holding that granting amendment would change an alter very character of the nature of the suit. The facts of the Page 16 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined present case are completely different which is explained herein above.
13.9 The trial Court has also erroneously observed that by addition of new property will itself change the nature of suit, as plaintiff has not clarified anything about new property. By addition of new property, nature of the suit can not be changed because defendants appear to have not admitted any of the suit properties as an ancestral properties thereby, burden is upon plaintiff to prove that existing suit properties as well as new property sought to be added are ancestral properties. Furthermore, once amendment would have been granted, defendants have right to amend their written statement. The plaintiff is yet to be cross examined by them. The ratio of decision of this Court in a case of Bhavnaben Prakashbhai Patel (supra) if applied to the facts of present case, such reasoning of trial court requires to be quashed.
13.10 Learned advocate Mr. Sanjanwala for the defendants would not in a position to show any prejudice will cause to the defendants if prayer of partition be added in the plaint by way of an amendment. It is by now well settled that if amendment which is sought, does not result in injustice to other side and not prejudice the rights of other side, such amendment should be allowed.
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"FACTORS TO BE TAKEN INTO CONSIDERATION WHILE DEALING WITH APPLICATIONS FOR AMENDMENTS:
63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.
(1) Whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) Whether the application for amendment is bona fide or mala fide; (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.
64. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary Page 18 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined amendments and should never permit mala fide, worthless and/or dishonest amendments."
(emphasis supplied) I am of the view that the trial Court has committed a serious error of law by rejecting the impugned application on the ground that amendment if granted will change nature of suit.
GROUND - (iii)- Applicability of proviso to Order 6 rule 17 of CPC 14.0 As per the submission made by the learned advocate Mr. Sanjanwala that impugned amendment application was filed after framing of issues, proviso to Order 6 rule 17 of CPC would come into play and in absence of any averment of due diligence made by the plaintiff in her application, impugned application can not be allowed and in fact correctly rejected by the trial Court.
14.1 Learned advocate Mr. Sanjanwala for the defendants has heavily relied upon several decisions of Hon'ble Apex Court in the cases of Kailash (supra), Ajendra Prasad (supra) and Vidyabai (supra) whereby, he would contended that once the issue has been framed by the trial Court, it would amount to commencement of trial and Page 19 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined proviso to Order 6 rule 17 of CPC would be applicable in the present case.
14.2 To appreciate the submissions of learned advocate Mr. Sanjanwala for the defendants, I would like to first refer to Order 6 rule 17 of CPC, which reads as under :-
"ORDER VI Rule 17. Amendment of pleadings.--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:
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."
14.3 Nowhere in the CPC, it has been defined when trial commenced. Nonetheless, by various pronouncement, Hon'ble Apex Court has either stated or explained when trial commenced in civil suit. In the case of Kailash (supra), it has been stated as under :-
"'Trial' of election petition, when it commences?
13. At this point the question arises : When does the trial of an election petition commence or what is the meaning to be assigned to the word 'trial' in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. As held by this Court in several decided cases, this general Page 20 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings commencing with the presentation of the election petition and upto the date of decision therein are included within the meaning of the word 'trial'."
(emphasis supplied) 14.4 After Kailash (supra), decision of Hon'ble Apex Court first in point of time was Baldevsingh (supra), wherein it has been observed as under in Para-17 :-
"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 the Suit. From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted herein after, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings."
(emphasis supplied) 14.5. Second in line would be Ajendra Prasad (supra), it has been observed as under in Para No. 57 & 60, which reads as under :-
"57. It is submitted that the date of settlement of issues is the date of Page 21 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined commencement of trial. (Kailash v. Nanhku). Either treating the date of settlement of issues as date of commencement of trial or treating the filing of affidavit which is treated as examination-in-chief as date of commencement of trial, the matter will fall under proviso to Order 6 Rule 17 CPC. The defendant has, therefore, to prove that in spite of due diligence, he could not have raised the matter before the commencement of trial. We have already referred to the dates and events very elaborately mentioned in the counter-affidavit which proves lack of due diligence on the part of Defendants 1 and 2 (the appellants).
xxxxxxx
60. The above averment, in our opinion, does not satisfy the requirement of Order 6 Rule 17 without giving the particulars which would satisfy the requirement of law that the matters now sought to be introduced by the amendment could not have been raised earlier in spite of due diligence. As held by this Court in Kailash v. Nanhku the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence."
(emphasis supplied) 14.6 Later on in the case of Vidyabai (supra), it has been observed in Para- 11 & 19 which reads as under :-
"11. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfill the said pre-condition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to `commencement of proceeding'.
xxxxx
19. It is the 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 Page 22 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined allowed. However, proviso appended to Order VI, 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."
(emphasis supplied) 14.7 Whereas, in the case of Mohindra Kumar Mehra (supra), it has been observed as under :-
"16. The judgment on which much reliance has been placed by learned counsel for the appellant is Rajesh Kumar Aggarwal & Ors. Vs. K.K. Modi & Ors. (2006) 4 SCC 385. This Court had occasion to consider and interpret Order VI Rule 17 in Paragraphs 15 and 16, in which following has been held:-
"15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for de- termining the real question in controversy be- tween the parties provided it does not cause injustice or prejudice to the other side.
16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in contro- versy between the parties."
17. Although Order VI Rule 17 permits amendment in the pleadings "at any stage of the proceedings", but a limitation has been engrafted by means of Proviso to the fact that no application for amendment shall be allowed after the trial is commenced. Reserving the Court's jurisdiction to order for permitting the party to amend pleading on being satisfied that in spite of due diligence the parties could not have raised the matter before the commencement of trial. In a suit when trial Page 23 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined commences? Order XVIII of the C.P.C. deal with "Hearing of the Suit and Examination of Witnesses". Issues are framed under Order XIV. At the first hearing of the suit, the Court after reading the plaint and written statement and after examination under Rule 1 of Order XIV is to frame issues. Order XV deals with "Disposal of the Suit at the first hearing", when it appears that the parties are not in issue of any question of law or a fact. After issues are framed and case is fixed for hearing and the party having right to begin is to produce his evidence, the trial of suit commences.
xxxxxxx
22. The Proviso to Order VI Rule 17 prohibited entertainment of amendment application after commencement of the trial with the object and purpose that once parties proceed with the leading of evidence, no new pleading be permitted to be introduced. The present is a case where actually before parties could led evidence, the amendment application has been filed and from the order dated 14.02.2014, it is clear that the plaintiff's case is that parties has led evidence even on the amended pleadings and plaintiff's cases was that in view of the fact that the parties led evidence on amended pleadings, the allowing the amendment was mere formality. The defendant in no manner can be said to be prejudiced by the amendments since plaintiff led his evidence on amended pleadings also as claimed by him.
23. This Court in Chander Kanta Bansal Vs. Rajinder Singh Anand, (2008) 5 SCC 117 has noted the object and purpose of amendment made in 2002. In Para 13, following has been held:-
"13. The entire object of the said amendment is to stall filing of applications for amend- ing a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the other's case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out enter- taining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases."
24. Looking to the object and purpose by which limitation was put on permitting amendment of the pleadings, in substance, in the present Page 24 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined case no prejudice can be said to have caused to the defendant since the evidence was led subsequent to the filing of the amendment application. We thus are of the view that looking to the purpose and object of the Proviso, present was a case where it cannot be held that amendment application filed by the plaintiff could not be considered due to bar of the Proviso."
(emphasis supplied)
15. In the present case issues were framed on 27.01.2021 whereas, the impugned amendment application came to be filed on 21.12.2023 but it is undisputed fact that till the date of filing the impugned application, the plaintiff has not stepped into witness box for her oral evidence be it filing examination in chief in lieu of her oral evidence or her cross-examination yet not begin. If this Court analysis the ratio of the aforementioned decisions of the Hon'ble Apex Court, what is deduced that trial would not commence unless plaintiff step into witness box for examination / cross examination.
16. It is true that in the case of Kailash (supra), the Hon'ble Apex Court has observed that in a civil suit, trial begins when issues are framed and the case is set down for recording of evidence. It is required to be observed that Hon'ble Apex Court in the case of Kailash (supra), never held that trial begins when issues are framed but it also simultaneously stated that trial begins when the case is set down for recording the evidence. So, prima-facie, one can inferred Page 25 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined from decision in the case of Kailash (supra) that when twin conditions i.e. framing of issues as well as case set down for recording of evidence fulfill, trail can be said to have begins.
17. In furtherance of what is observed herein above, subsequent to decision in the case of Kailash (supra), first in point of time, in the case of Baldevsingh (supra) (decision dated 03-08-2006), it has been so held by the Hon'ble Apex Court that commencement of trial as used in proviso to Order 6 rule 17 of CPC must be understood in the limited sense as meaning the final hearing of the suit, examination of the witnesses, filing of documents and addressing of arguments. Prima-facie, the Hon'ble Apex Court in the case of Baldevsingh (supra) for the first time has elaborated meaning of commencement of trial in context of Order 6 rule 17 of CPC.
18. It is true that in a case of Ajendra Prasad (supra) (decision dated 08-12-2006), Hon'ble Apex Court had held that be it date of settlement of issues or treating the filing of affidavit as examination in chief as a date of commencement of trial, matter will fall under proviso to Order 6 rule 17 of CPC. So, in the case of Ajendra Prasad (supra) also, it has not been held that date of settlement of issues alone is a date of commencement of trial. Even, in the Page 26 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined case of Ajendra Prasad (supra), undisputedly amendment application was filed by defendant on 24.11.2005 which was subsequent to submitting affidavit of examination-in-chief of plaintiff which was submitted on 21.11.2005. In that background of facts, the Hon'ble Apex Court has turned down amendment applying proviso to Order 6 rule 17 of CPC. It is required to be noted here that decision in the case of Baldevsingh (supra) is prior in point of time to the case of Ajendra Prasad (supra). So, as per rule of binding precedent, decision taken by former would be binding to later one.
19. In the case of Vidyabai (supra), which had considered all the said three decisions and after considering its ratio, the Hon'ble Apex Court held that "Filing of an affidavit in lieu of examination-in-chief of witness, in our opinion, would amount to "commencement of proceedings."
20. Whereas, in the case of Mohindra Kumar Mehra (supra) after taking note of its previous decisions especially in the case of Vidyabai (supra), the Hon'ble Apex Court has held that "After issues are framed and case is fixed for hearing and party having right to begin is to produce his evidence, trial of suit commences. The proviso to Order 6 rule 17 of CPC prohibited entertainment of amendment application after commencement of trial with the object Page 27 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined and purpose that once parties proceed with the leading of evidence, no new pleading be permitted to be introduced."
21. At this stage it is also profitable to refer and rely upon the Full Bench decision of the Hon'ble Apex Court in the case of Union of India Vs. Major General Madan Lal Yadav (Rtd.) reported in (1996) 4 SCC 127, wherein it has been held in Para 13 to 19, which reads as under:-
"13. The words "trial commences" employed in Section 123 [2] shall be required to be understood in the light of the scheme of the Act and the Rules. The question is as to when the trial is said to commence? The word 'trial' according to Collins English Dictionary means:
"the act or an instance of trying or proving; test or experiment... Law. a. the judicial examination of the issues in a civil or criminal cause by a competent tribunal and the determination of these issues in accordance with the law of the land. b. the determination of an accused person's guilt or innocence after hearing evidence for the prosecution and nor the accused and the judicial examination of the issues involved".
14. According to Ballentine's Law Dictionary [2nd ed.] 'trial' means:
"an examination before a competent tribunal according to the law of the land, of the facts or law put in issue in a cause, for the purpose of determining such issue. When a court hears and determines any issue of fact or law for the purpose of determining the right of the parties, it may be considered a trial"
15. In Block's Law Dictionary [Sixth Edition] Centennial Edition, the word 'trial' is defined thus:
"A judicial examination and determination of issues between parties to action, whether they be issues of law or of fact, before a court that has jurisdiction... A judicial examination, in Page 28 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined accordance with law of the land, of a cause, either civil or Criminal, of the issues between the parties, whether of law or facts, before a court that has proper jurisdiction".
16. In Webster's Comprehensive Dictionary International Edition, at page 1339, the word 'trial' is defined thus:
"....The examination, before a tribunal having assigned jurisdiction, of the facts or law involved in ail issue in order to determine that issue. A former method of determining guilt or innocence by subjecting the accused to physical tests of endurance, as by ordeal or by combat with his accuser... In the process of being tried or tested... Made or performed in the course of trying or testing...".
17. The word `commence' is defined in Collins English Dictionary to mean "to start or begin; come or cause to come into being, operation etc." In Black's Law Dictionary it is defined to mean:
"to initiate by performing the first act or step. To begin, institute or start.
Civil action in most jurisdictions is commenced by filing a complaint with the court....
Criminal action is commenced within statute of limitations at time preliminary complaint or information is filed with magistrate in good faith and a warrant issued thereon... A criminal prosecution is "commenced" [1] when information is laid before magistrate charging commission of crime, and a warrant of arrest is issued, or [2] when grand jury has returned an indictment".
18. In the "Words and Phrases" [Permanent Edition] Vol.42A, at page 171, under the head "Commencement", it is stated that ".4 'trial' commences at least from the time when work of empanelling of a jury begins".
19. It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own Page 29 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto . The trial commences with performance of the first act or steps necessary or essential to proceed with trial."
(emphasis supplied)
22. It is apposite to refer the decision of the Division Bench of Calcutta High Court in the case of Sree Sree Iswar Radha Behari Jew Vs. Malati P. Soni reported in AIR 2019 Calcutta 131 has observed and held as under in Para 2 & 38 :-
"2. A single bench of this court has put up the following question for a decision on reference :
"Whether, in view of Vidyabai vs. Padmalatha [(2009) 2 SCC 409], 'commencement of trial', as envisaged in the proviso to Order VI Rule 17 of the Code of Civil Procedure, would mean the date of first hearing, that is the date of framing of issues, or the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments?"
38. The question raised in the reference is, thus, answered as follows the expression "commencement of trial" in the proviso to Order VI, Rule 17 of the Code of Civil Procedure would imply the date when the court first applies its mind after the affidavit of evidence is filed and when the first witness proves his affidavit of evidence or such witness seeks to prove a document for it to be tendered in evidence or the cross-examination of such witness begins, whichever is earlier." (emphasis supplied)
23. Similarly, the Division Bench of Bombay High Court in the case of Mahadeo Vs. Balaji and others reported in 2012 SCC Online Bom. 1283 observed and held as under in Para- 1 & 26.
Page 30 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined "1. This Writ Petition has been referred to us to answer the following questions of law;
i] Whether the view taken by learned Single Judge of this Court in " Ajit Narsinha Talekar Vs. Smt. 9659.2010 Writ Petition Nirmala Wamanrao Kakade and others" 2010 (5) Mah.L.J. 481, " Bhagwandas Kanhaiyyalal Bubna Vs. Shyamsundar Wasudeo Bubna and others" (2010 (1) Bom.C.R. 218, and " Vinod s/o Khimji Lodaya and another V. The Chief Executive Officer and others (Civil Revision Application No. 123/2009), is legal and proper and the trial in civil suit commences on the date of the framing of the issues or that it commences from the date of filing of affidavit in lieu of examination-in- chief?
ii] Whether proviso appended to Order-VI Rule-17 of the Code of Civil Procedure is attracted after framing of the issues or it will come into play only after stage of filing of affidavit/s in lieu of examination-in-chief of witness/ es?
26. In view of the aforesaid discussion, the view expressed by learned Single Judges of this Court in " Ajit Narsinha Talekar Vs. Smt. Nirmala Wamanrao Kakade and others " 2010 (5) Mah.L.J. 481, "
Bhagwandas Kanhaiyyalal Bubna Vs. Shyamsundar Wasudeo Bubna and others" (2010 (1) Bom.C.R. 218, and " Vinod s/o Khimji Lodaya and another V. The Chief Executive Officer and others (Civil Revision Application No. 123/2009)", needs to be endorsed as legal and proper. In our considered view, the trial in a Writ Petition civil suit commences from the date of filing of affidavits in lieu of the examination in chief of the witness/ es and the proviso to order 6 Rule 17 of the Code of Civil Procedure, 1908 will come into play only after stage of filing of affidavits in lieu of examination in chief of witness/ es."
(emphasis supplied)
24. Thus, after going through the aforesaid decisions of Hon'ble Apex Court and High Court of Calcutta and Bombay, Page 31 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined it is by now well settled position of law that commencement of trial of civil suit in relation to proviso to Order 6 rule 17 of CPC would be a date of filing of an affidavit in lieu of examination-in-chief of witness i.e. plaintiff and not only date of the settlement of issues.
25. Now, coming back to the facts of the present case, undisputedly impugned amendment application is filed prior to filing of an affidavit in lieu of examination-in-chief of witness i.e. plaintiff, which in fact yet to be filed by plaintiff. So, according to my view, proviso to Order 6 rule 17 of CPC would not apply to the facts of the present case.
Belated filing of amendment application
26. So far as filing of impugned application at a belated stage is concerned, it is true that plaintiff could have filed such application promptly but delay in filing amendment application is not inordinate one which disentitled plaintiff to pray amendment. No serious prejudice caused to defendants if amendment would have been granted. In fact, if amendment allow, it would rather resolve real controversies involved between the parties, thereby, it will avoid multiplicity of proceedings in future then, save the Court's time.
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27. At this stage, it would be profitable to refer and rely upon the following observations so made by the Hon'ble Apex Court in the case of Dinesh Goyal (supra) in Para- 11.2, 14 & 17, which reads as under :-
"11.1 The settled rule is that the Courts should adopt a liberal approach in granting leave to amend pleadings, however, the same cannot be in contravention of the statutory boundaries placed on such power. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das6 it was held as under:
"16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363] which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions :
(a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in (2008) 8 SCC 511 8|SLP(C)30324/2019 controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.
[Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar (1990) 1 SCC 166.]"
11.2 Over the years, through numerous judicial precedents certain factors have been outlined for the application of Order VI Rule 17. Recently, this Court in Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd. & Anr.7, after considering numerous precedents in regard to the amendment of pleadings, culled out certain principles:-
(i) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not Page 33 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.
(ii) In the following scenario such applications should be ordinarily allowed if the amendment is for effective and proper adjudication of the controversy between the parties to avoid multiplicity of proceedings, provided it does not result in injustice to the other side.
(iii) Amendments, while generally should be allowed, the same should be disallowed if - 2022 SCC OnLine SC 1128
(a) By the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side.
(b) The amendment does not raise a time-barred claim, resulting in the divesting of the other side of a valuable accrued right (in certain situations)
(c) The amendment completely changes the nature of the suit;
(d) The prayer for amendment is malafide,
(e) By the amendment, the other side should not lose a valid defence.
(iv) Some general principles to be kept in mind are - (I) The court should avoid a hyper-technical approach;
ordinarily be liberal, especially when the opposite party can be compensated by costs.
(II) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint or introduce an additional or a new approach. (III) The amendment should not change the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint.
14. Be that as it may, the overarching Rule is that a liberal approach is to be adopted in consideration of such applications. [See also: Sanjeev Builders (supra); Rakesh Kumar Agarwal v. Rajmala Exports Pvt. Ltd.8; Usha Balasaheb Swami & Ors. v. Kiran Appaso Swami & Ors.9; B.K. Narayana Pillai v. Parmeswaran Pillai & Anr.10].
17. Any and all delays in judicial processes should be avoided and minimised to the largest extent possible, and should generally be, and Page 34 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined are rightly frowned upon. However, not in all cases can delay determine the fate of a Suit. The defendant submits that the time gap between submitting the written statement to the Suit and the presentation of the application seeking leave to amend is unexplained. If this argument of the defendant is accepted, the question of Will shall remain undecided or at best will be decided with great delay. The trial which has admittedly already commenced, would be stalled by way of a challenge to the framing of issues which, in turn, would not be in consonance with the object of Order VI Rule 17 of CPC which is aimed at preventing multiplicity or multiple avenues of litigation, subsumed under the umbrella of one dispute."
(emphasis supplied)
28. Thus, in view of the ratio of decision of Hon'ble Apex Court in the case of Baldevsinh (supra), Vidyabai (supra), Mohindra Kumar Mehra (supra), Sanjeev Builders (supra) and Dinesh Goyal @Pappu (supra), the impugned amendment application requires to be allowed.
Conclusion
29. The upshot of the aforesaid discussion, observation and reasons, the impugned order passed not in consonance with the provisions of CPC and in fact passed contrary to law laid down by the Hon'ble Apex Court thereby, trial Court has committed a jurisdictional error while partly allowing impugned amendment application.
30. In view of the aforesaid, considering the facts and circumstances of the case and nature of controversies Page 35 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined involved between the parties, amendment which is sought by the plaintiff requires to be granted to determine the real questions in controversy between the parties, thereby, it would avoid multiplicity of proceedings between the parties.
31. The proviso to Order 6 R. 17 of CPC would not be applicable to the impugned amendment application as commencement of trial of civil suit in relation to proviso to Order 6 rule 17 of CPC would be a date of filing of an affidavit in lieu of examination-in-chief of witness i.e. plaintiff and not only date of the settlement of issues. No such affidavit is filed by plaintiff, trial in the case on hand yet not begins.
32. Thus, in view of aforesaid, the impugned order dated 25.10.2024 passed by 11th Additional Civil Judge, Surat on amendment application filed below Exh.93 in Regular Civil Suit No.103 of 2014, is hereby quashed and set aside. Consequently, the impugned amendment application filed by the plaintiff below Exhibit - 93 in Regular Civil Suit No. 103 of 2014 pending before the 11th Additional Civil Judge, Surat is hereby fully allowed.
33. The plaintiff shall carry out necessary amendment in the plaint within one month from the date of receipt of Page 36 of 37 Uploaded by SALIM(HC01108) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:40:28 IST 2025 NEUTRAL CITATION C/SCA/16214/2024 CAV JUDGMENT DATED: 20/03/2025 undefined this order by submitting amended copy of the plaint.
33.1 The defendants are hereby permitted to submit their amended written statement within one month after receipt of amended plaint.
33.2 The parties are also permitted to submit additional documents in support of their amended pleadings if any. The trial Court is hereby requested to frame necessary issues once amended pleadings will be filed as aforesaid.
33.3 Thereafter, parties are directed to lead their oral evidence at earliest and extend their full co-operation to the trail Court so, it can heard and decide the suit at the earliest which was filed in the year 2014.
34. The present writ application is hereby allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
35. Civil Application would not survive and disposed of accordingly.
Sd/-
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