Order VI Rule 17 CPC | Mere Pleading Of 'Oversight' Not Sufficient To Allow Amendment Of Pleadings After The Trial Has Commenced: SC
|The Supreme Court observed that mere pleading of 'oversight' is not sufficient to allow amendment of pleadings after the trial has commenced.
The Court said that under, Proviso to Order VI Rule 17 of Code Of Civil Procedure, there has to be pleading to the effect that due diligence was there at the time of filing of the suit in not seeking relief prayed for by way of amendment.
The Court observed thus in an appeal filed against the order of the Karnataka High Court by which an application filed by plaintiffs for amendment of the plaint was allowed, subject to costs of Rs. 2,000/-.
The two-Judge Bench of Justice C.T. Ravikumar and Justice Rajesh Bindal held, "In the case in hand, this is not even the pleaded case of respondents No. 1 and 2 before the Trial Court in the application for amendment that due diligence was there at the time of filing of the suit in not seeking relief prayed for by way of amendment. All what was pleaded was oversight. The same cannot be accepted as a ground to allow any amendment in the pleadings at the fag end of the trial especially when admittedly the facts were in knowledge of the respondents No. 1 and 2/plaintiffs."
Advocate Nishant Patil represented the appellant while Advocate Ashok Kumar Gupta II represented the respondents.
In this case, the plaintiffs/respondents filed a suit for partition of the ancestral property belonging to their grandfather pleading that, no actual partition of the property has ever taken place. When the suit was at the fag-end, an application was filed by plaintiffs seeking amendment of the plaint. The amendment sought was to add prayer in the suit for a declaration that an earlier compromise decree was null and void.
As prayer was not made earlier, the court fee required thereon was also sought to be affixed. The ground on which the amendment was sought was that due to oversight and mistake, the plaintiffs were unable to seek the relief of declaration. The Trial Court dismissed the application, however, when the order was challenged before the High Court, the same was set aside and the amendment prayed for by the plaintiffs was allowed subject to payment of costs. Hence, the matter was before the Supreme Court.
The Apex Court after hearing the contentions of the counsel said, “If the amendment is allowed in the case in hand, certainly prejudice will be caused to the appellant. This is one of the important factors to be seen at the time of consideration of any application for amendment of pleadings. Any right accrued to the opposite party cannot be taken away on account of delay in filing the application.”
The Court further said that initially, the suit was filed for partition and separate possession and by way of amendment, relief of declaration of the compromise decree being null and void was also sought. It said that, therefore, the same would certainly change the nature of the suit, which may be impermissible.
“Further, a perusal of the memo of parties in the suit in question and in the compromise decree shows that the plaintiffs i.e. Sharnamma @ Mahananda wife of Basvaraj and Mahadevi wife of Shivsharnappa Nasi in Original Suit No. 401 of 2003 are not party to the present litigation. Even if on any ground the amendment could be permitted, still no relief could be claimed with reference to setting aside of the compromise decree as all the parties thereto were not before the Court in the suit in question”, it added.
The Court, therefore, imposed a cost of Rs. 1 lakh upon the respondents/plaintiffs to be paid by them to the appellant.
Accordingly, the Supreme Court allowed the appeal, set aside the order of the High Court, and dismissed the application filed for amendment of the plaint.
Cause Title- Basavaraj v. Indira and Others (Neutral Citation: 2024 INSC 151)
Appearance:
Appellant: Advocate Nishant Patil, AOR Ankolekar Gurudatta, Advocates Shiv Kumar, and Korada Pramod Kumar.
Respondents: AORs Ashok Kumar Gupta II and Shankar Divate.