FARHANA SAMI Vs. DYNAMIK DEVELOPERS PVT LTD

JUDGEMENT

(1.) Petitioner/defendant has assailed order dtd. 23/9/2025 of the learned trial court, whereby her application for amendment of Written Statement was dismissed in view of bar under proviso to Order VI Rule 17 CPC.

(2.) It is contended on behalf of petitioner/defendant that being a home maker, she was dependent upon her husband for the transactions between the parties. It is further contended that when the Written Statement was filed, husband of the petitioner/defendant being in jail, she did not have knowledge of complete facts, therefore, could not plead as regards the payments already made by her to the respondent/plaintiff. It is only after her husband got released from jail that the petitioner/defendant came to know about the fact of payment of entire suit amount already done by her to the respondent/plaintiff. That being so, according to learned counsel for petitioner/defendant, the learned trial court fell in error in applying bar contemplated by proviso to Order VI Rule 17 CPC on her application for amendment of the Written Statement.

(3.) The provision under Order VI Rule 17 CPC, as brought in force by way of 2002 amendment of the Code clearly contemplates through its proviso that an application for amendment shall not be allowed once trial has commenced, unless the court comes to conclusion that in spite of due diligence, the applicant could not have raised the matter prior to the commencement of trial. What is to be seen in the present case is as to whether the petitioner/defendant could have, by exercise of due diligence, pleaded in the Written Statement originally filed or later, prior to commencement of trial that she had paid the entire outstanding amount to the respondent/plaintiff even prior to the filing of the suit.