The single judge bench of the Jharkhand High Court held that it is clear from the provision of Order VI Rule 17 CPC that amendment is normally to be allowed but subject to certain conditions i.e., 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.
Brief facts
The factual matrix of the case is that the partition suit was filed by the Plaintiff/Respondent. The father of the Petitioner no. 1 executed a gift deed in the favour of his daughter by virtue of a registered deed of gift. After the filing of the written statement by the defendant, the Plaintiff filed an under Order VI Rule 17 for amendment of the plaint with a prayer for additional relief for a decree declaring that the Deed of Gift null and void and not binding upon the plaintiff. The Plaintiff asserted that the Plaintiff came to know about the gift deed only after filing of the written statement. The trial court allowed the amendment petition while holding that the proposed amendment will not change the nature of the suit and the said is also necessary for the deciding the real controversy. Aggrieved by this, the present petition has been filed under Article 227 of the Constitution of India.
Contentions of the Petitioner
The Petitioner submitted that the nature of the suit could not be allowed to change and in the instant case, the suit is of the partition whereas the Plaintiff filed an amendment petition in the partition suit seeking a declaration of gift deed void, collusive, fraudulent, paper transaction and never acted upon and not binding upon the plaintiff, and if the same will be allowed to make a part of the plaint it will alter the nature of the suit.
The Petitioner relied upon the judgments titled Basavaraj Vs. Indira & Ors, and Biren Ghosh Vs. Ratan Ghosh & Anr.
Contentions of the Respondent
The Respondent submitted that the trial court has committed no error in allowing the amendment petition as without this the partition suit can’t be decided. It was furthermore submitted that the trial is at the initial stage and no prejudice will be caused to the defendants. Also, even if the proposed amendment is allowed the nature of the suit still remains the same.
The Respondent relied upon the judgment titled N.K. Mahesh Vs. Mrs. Vasna Soman & Ors.
Observations of the court
The Hon’ble Court observed that from the bare perusal of the provision of Order VI Rule 17 CPC it is clear that amendment is normally to be allowed but subject to certain conditions i.e., 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.
The court furthermore laid down the conditions of the amendment after taking into consideration numerous judgments of the Apex court. The conditions are as follows
- when the nature of the suit is not changed;
- when the amendment would not result in introducing new cause of action and intends to prejudice the other party;
- when defeats the law of limitation, if fresh suit of amendment plaint would be passed;
- when there is a general rule it would be rejected but to avoid multiplicity it can be allowed.
The court noted that the Plaintiff asserted that he got to know about the gift deed after filing the written statement by the defendant and the period of limitation will be counted from the date of knowledge of the plaintiff and not from the date of execution of the gift deed. Hence, the amendment petition is well within the period of limitation.
The court furthermore noted that unless the propriety of the gift deed will be adjudicated there will be no adjudication of the partition suit. Therefore, to determine the real question in controversy between the parties, it is necessary to decide the validity of the gift deed.
Also, no prejudice will be caused to the defendants, if the petition of amendment is allowed because the trial of the case has been started but not a single witness has been examined in this case till today.
Based on these considerations, the court was of the opinion that disallowing the amendment petition will cause prejudice to the case of the petitioner for all time to come and the trial court has committed no error in passing the impugned order.
The decision of the court
With the above direction, the court dismissed the Petition.
Case Title: Miss Susmita Roy V. Sri Subir Kumar Roy
Coram: Hon’ble Mr. Justice Sujit Narayan Prasad
Case No.: C.M.P. No. 54 of 2023
Advocates for the Petitioner: Mr. Indrajit Sinha, Advocate Mr. Ankit Vishal, Advocate
Advocates for the Respondent: Mr. Atanu Banerjee, Amicus Curiae Mr. Aditee Dongrawat, Advocate
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