Order VI Rule 17 CPC| Test Of Deciding The Real Controversy Applies Prior To Trial, Post Commencement, Only Test Of Due Diligence Is To Be Seen: Bombay HC

The Bombay High Court observed that the test of deciding the real controversy is applicable when the amendment is asked for prior to the commencement of the trial, after that the only test of due diligence is to be seen.

The Court was dealing with a writ petition against an order of the trial court whereby amendment application under Order 6 Rule 17 of the CPC was allowed post commencement of trial.

The single-bench of Justice S.M. Modak observed, "The test of deciding the real controversy is applicable when the amendment is asked for prior to the commencement of the trial. After commencement of the trial, the only test of due diligence is to be seen. This proviso is added only for curtailing the vexatious amendments. Why it is so, because the parties have taken their positions. If it is so, then they cannot be permitted to take an additional stand which will damage the plea already taken. This is particularly necessary when the Defendants have objected for not praying for certain reliefs, In fact, that was a proper stage for the Plaintiff to take steps for collecting the sale-deeds...."

The petitioners was represented by Advocate Dilip Bodake while the respondents were represented by Advocate Ajit Kenjale with Advocate Sohil Gulabani, Advocate Azharuddin Khan and Advocate Sai Kadam.

The facts of the case is that the trial court allowed the amendment application after the commencement of the trial and after the Plaintiff has entered into the witness-box and cross-examined. The only reason assigned was that the Plaintiff is an aged lady who is illiterate and got certified copies of the sale deed only recently.

Counsel for the Petitioner argued that there is no due diligence while Counsel for Respondent relied on catena of judgments to justifies the Trial Court's decision such as in Abdul Rehman and Another v/s. Mohd. Ruldu and Others, Mohinder Kumar Mehra v/s. Roop Rani Mehra and Ors., Chakreshwari Construction Pvt. Ltd. v/s. Manohar Lal and Gurbakhsh Singh and Others v/s. Buta Singh and Another.

 The Court was of the view that the trial Court ought not allowed the amendment of the Plaint.

"It is pertinent to note that Defendant No.1 has taken a clear stand that declaration is not sought about those sale-deeds. It is a matter of record that issues are framed. Even, the Plaintiff has entered into the witness-box. Merely because she is an illiterate lady and merely because she obtained certified copies of those sale-deeds subsequently, how it can be said that she was diligent in prosecuting the Suit and asking for amendment," the court observed.

The court asserted that test of due diligence applies in amendment application after trial has commenced.

"Once, the cross-examination is started, I think, the amendment ought not to have been allowed. Furthermore, if we go by the dates of these sale-deeds, it can certainly be said that the amendment is done after a long gap. The Suit was filed in the year 2015 and the amendment is sought in the year 2022. When the dates are clear, this Court can certainly make certain observations about the limitation," the court observed.

The petition was accordingly allowed.

Cause Title: Ganpat Bhagoji Kshirsagar and Ors vs. Anjana Krushna Jamdade and Ors (2024:BHC-AS:40403)

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