Delhi High Court (Justice Jayanth Nath)

IA No.8419/2013 in CS(OS) 2154/2010
RAJ RANI & ANR 
versus
SUMITRA PARASHAR & ANR

• Order 6, Rule 17, Proviso CPC Amendment of plaint No application of amendment shall be allowed after trial has commenced, unless Court comes to conclusion that in spite of due diligence party could not have raised the matter before commencement of trial Plaintiff has given a plausible explanation to show that despite due diligence he could not have inserted amendments Even assuming that present application has not been filed without due diligence, amendment as sought by plaintiff cannot be shut out Amendments sought are necessary for the purpose of determining real questions in controversy Application is allowed subject to payment of costs of 20,000/- payable to defendant.

Relevant Paras:

10. Learned senior counsel for the defendant, on the other hand, has vehemently opposed the present application. It is urged that the present application, apart from being barred under Order 6 Rule 17 CPC is nothing but a dilatory tactic. It is averred that issues were framed on 28.11.2011.
Evidence of PW 1 has been filed on 19.1.2012 and was tendered on 2.5.2012. Thereafter the plaintiff has filed an application under Order 14 Rule 5 CPC for dropping of issue No.4 which was also dismissed on 18.2.2013. In May, 2013 the present application is filed belatedly. It is further urged that the evidence has already commenced. Hence, in view of proviso to Order 6 Rule 17 CPC the present application is barred. Reliance is placed on the judgment of the Supreme Court in Rajkumar Gurawara versus S.K.Sarwagi and Company Private Limited and another (2008) 14 SCC364, Salem Advocate Bar Association versus Union of India, (2005) 6 SCC 344 and Vidyabai and others versus Padamlatha and another, (2009) 2 SC 409 to contend that the proviso to Order 6 Rule 17 is couched in a mandatory form and that the jurisdiction of this Court is taken away when evidence has commenced, unless the party seeking an amendment can show that in spite of due diligence the said party could not have raised the matter before commencement of trial.
11. Learned senior counsel for the plaintiff in rebuttal has stressed that no doubt the evidence by way of Affidavit of PW 1 has been filed and tendered in evidence. However, it is urged that cross-examination is yet to commence. Further, only nominal examination-in-chief took place on one date of hearing. He submits that no prejudice would be caused to the defendant in case the present amendment is allowed. Reliance is placed on the judgment of the Hon’ble Supreme Court in the case of Baldev Singh and others versus Manohar Singh and another, 2006(6) SCC 498 and; Pankaja and Another versus Yellapa (2004) 6 SCC 415 and judgment of this High Court in the case of Link Engineers (P.) Ltd. vs. ASEA Brown Boveri Limited & Ors., 140(2007) DLT 533 to contend that the proviso is applicable only once the entire pleadings are completed and the discretion of the Court in allowing an amendment has not been completely done away with but has only been curtailed.

 

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RAJ RANI & ANR VS SUMITRA & ORS JUDGMENT DEKHI HIGH COURT 2014 the law literates

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