INDRABHAN AND OTHERS Vs. MAANWATI AND OTHERS

JUDGEMENT

(1.) Heard on admission. This is a petition filed under Article 227 of the Constitution of India challenging the legality and validity of the order dated 29.09.2016 passed by the Second Civil Judge Class-II Churhat District Sidhi, whereby the application filed by the petitioner under Order 6, Rule 17 of the Code of Civil Procedure (hereinafter in short referred as "CPC") has been rejected.

(2.) The question for consideration is whether the order passed by the trial Court rejecting application for amendment so far challenge to sale deed dated 18.08.2005 suffers from any perversity, illegality or jurisdictional error. The validity of the order impugned has to be examined on the anvil of facts and law relating to the consideration of application for amendment under Order 6, Rule 17 of the CPC. It is apposite to refer the amended provisions of Order 6, Rule 17 of the CPC which enables the parties to make amendment in the plaint which reads as under :

(3.) The above provisions deals with the amendment of pleadings. The provision inserted by Amendment Act 46 of 1999, was deleted, which has again been restored by Amendment Act 22 of 2002 (as quoted above) but with an added proviso to prevent application for amendment being allowed after trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could have raised the matter before the commencement of the trial. The proviso to same extent, curtails absolute discretion to allow amendment at any stage. Now if the application is filed after commencement of the trial, the party seeking amendment in the pleadings must show that inspite of due diligence such amendment could have been sought earlier. Further the provisions indicate that the basic percepts for allowing the application for amendment of pleadings are that such amendment shall be necessary for the purpose of determining the real question of controversy between the parties. The party cannot be allowed to set up new case under the guise of amendment by-passing the provisions of limitation, delay and other factors.