In CR No.5822 of 2017-PUNJ HC- In view of Order VI Rule 17 of CPC, amendment to pleadings is not to be allowed after commencement of trial, unless Court comes to conclusion that despite due diligence, parties could not have raised matter before commencement: P&H HC
Justice Tribhuvan Dahiya [29-10-2022]

Read Order: Paramjit Singh v. Punjab Wakf Board, Chandigarh

Monika Rahar

Chandigarh, November 7, 2022:  While dealing with a revision petition filed for setting aside the order of the lower appellate Court by which respondent/plaintiff’s application under Order VI Rule 17 of Code of Civil Procedure for amendment of the plaint was allowed, the High Court of Punjab and Haryana has held that the provisions of Order VI Rule 17 of CPC specifically provide that amendment to pleadings is not to be allowed after the commencement of trial, unless the Court comes to conclusion that despite due diligence, the parties could not have raised the matter before the commencement of trial.

The facts before the Bench of Justice Tribhuvan Dahiya were that the respondent/plaintiff filed a suit for possession of the suit property and for recovery of charges for illegal use and occupation of the said property. The suit was dismissed by the trial Court by judgment and decree holding that plaintiff failed to prove defendant’s possession over khasra No.287 and that the suit property was a part of it. 

It was also held that so far as the question of possession was concerned, the plaintiff failed to prove on record any site plan of the 478 sq.yards property alleged to be in possession of the defendant. In the headnote of the plaint, no name of any person having the adjoining property or the nature of the adjoining property, was mentioned. The trial Court further held, when the defendant took a specific stand that property marked as ABCDEA did not fall in khasra No.287; instead, the suit property was part of khasra No.265, the plaintiff was required to prove that suit property formed part of khasra No.287. 

After dismissal of the suit in question by the trial Court, the respondent/plaintiff filed the application in question seeking amendment of the plaint. The amendment was sought on the ground that the boundaries of the suit property could not be explained properly due to oversight; therefore, amendment to the headnote as well as prayer clause of the plaint was required to mention the details of the persons who owned the adjoining property, which would not change nature of the case. 

The lower appellate Court allowed the said amendment by holding that the persons who were having property around the disputed property were in the knowledge of the plaintiff at the time of filing of the suit and it attached a site plan with the plaint. The amendment sought was therefore, only explanatory which would help the Court arrive at a correct conclusion. It was held to be relevant and bonafide also. 

The Court observed at the very outset that the provisions of Order VI Rule 17 of CPC specifically provide that amendment to pleadings is not to be allowed after the commencement of trial, unless the Court comes to conclusion that despite due diligence, the parties could not have raised the matter before the commencement of trial. 

In the instant case, the Court observed that the amendment was sought only on the ground that the suit property could not be properly explained in the plaint due to oversight therefore, the amendment was needed. 

“It is not the pleaded case of respondent/plaintiff that despite due diligence, it could not have mentioned these facts in the plaint earlier or that the same were not to its knowledge. There was, therefore, no ground for the lower appellate Court to allow the amendment in a casual manner, merely on the asking of respondent/defendant in violation of explicit provisions of the Code”, the Court held. 

The Court noted another aspect of the matter which was that the amendment was being sought after dismissal of the suit by the trial Court inter alia on the ground that plaintiff was unable to prove that the property in question, mentioned as ABCDEA, fell in khasra No.287 as claimed by it while filing the suit. It was also held by the trial Court that in the headnote of the plaint did not mention the name of any of the persons having the adjoining property or nature of the adjoining property. 

“By way of the instant application for amendment of plaint, this is exactly what is sought to be mentioned therein, i.e., names of the persons having adjoining property. It is, therefore, a blatant attempt on the part of respondent/plaintiff to fill the lacuna in its suit, which cannot be permitted. Allowing such an amendment would only be a misuse of the provisions of Order VI Rule 17 of CPC”, the Bench opined. 

The revision petition was accordingly allowed.