Order 6 Rule 17 CPC | Amendment Of Plaint Shouldn't Be Allowed If It Alters Nature Of Suit: Supreme Court

The Supreme Court on February 29 (Thursday) held that an application seeking amendment of plaint shouldn't be allowed under Order 6 Rule 17 of CPC if the amendment alters the nature of the suit.

In the present case, an amendment of the plaint in a partition suit was sought to include a prayer to declare an earlier compromise decree as void. The Court disallowed the application stating that the amendment had the effect of altering the nature of partition suit to a declaration suit.

The Supreme Court Bench Comprising Justices C.T. Ravikumar and Rajesh Bindal, while reversing the High Court's decision which had allowed the application seeking an amendment of the suit, observed that an application seeking amendment to the suit under Order 6 Rule 17 CPC shall not be allowed after the trial has commenced unless the Court concludes that despite due diligence, the party could not have raised the matter before the commencement of trial.

The Judgment authored by Bindal J. noted that the amendment to the suit can be allowed only if the party seeking amendment to the suit proves that despite due diligence, such an amendment could not have been sought earlier.

However, the Supreme Court also recorded that amendment to the suit shall not be allowed on the ground that due to oversight and mistake, the party was unable to seek the amendment to the suit.

Background

Briefly, the facts available on record are that respondents No. 1 and 2/plaintiffs 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 respondents No. 1 and 2 seeking amendment of the plaint. The amendment sought was to add prayer in the suit for a declaration that an earlier compromise decree dated 14.10.2004 passed under Order 23 Rule 3 of CPC was null and void.

The ground on which the amendment was sought was that due to oversight and mistake, respondents No. 1 and 2/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.

Against the decision of the High Court, the defendants-appellant preferred the civil appeal before the Supreme Court.

Issue

The question that appeared before the Supreme Court was whether the plaintiff could seek an amendment to the suit whereby the nature of the suit can be changed i.e., from the partition suit to the declaration suit i.e., declaring the compromise decree as void.

Supreme Court's Observation

Answering the aforesaid question negatively, the Supreme Court held such an exercise would certainly change the nature of the suit, which may be impermissible.

“Initially, the suit was filed for partition and separate possession. By way of amendment, relief of declaration of the compromise decree being null and void was also sought. The same would certainly change the nature of the suit, which may be impermissible.”, observed the Supreme Court while relying on M. Revanna v. Anjanamma (Dead) by legal representatives and others.

In M. Revanna, the Supreme Court opined that an application for amendment may be rejected if it seeks to introduce totally different, new, and inconsistent case or changes the fundamental character of the suit.

Application Seeking Amendment To The Suit Should Be Filed Before the Commencement of Trial

Further, the Supreme Court while referring to Order 6 Rule 17 CPC recorded that the party seeking amendment to the suit must have raised before the court before the commencement of trial, and not at the fag end of the suit.

“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.”

Application Seeking Amendment To The Suit Shouldn't Be Allowed If It Prejudices the Interest Of Other Party

While referring to its judgment of Revajeetu Builders and Developers v. Narayanaswamy and sons and others, the Supreme Court observed that “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 Supreme Court in Revajeetu Builders enumerated the factors to be taken into consideration by the court while dealing with an application for amendment. One of the important factors is as to whether the amendment would cause prejudice to the other side or it fundamentally changes the nature and character of the case or a fresh suit on the amended claim would be barred on the date of filing the application.

Conclusion

For the reasons mentioned above, the present appeal is allowed. The impugned order passed by the High Court is set aside. The application filed for amendment of the plaint is dismissed. The appellant shall be entitled to the cost of the proceedings, which are assessed at ₹1,00,000/- to be paid jointly or severally by respondents No. 1 and 2. The appellant shall be paid the amount of cost on the next date of hearing before the Trial Court by way of a demand draft.

Counsels For Appellant(s) Mr. Nishant Patil, Adv. Mr. Ankolekar Gurudatta, AOR Mr. Shiv Kumar, Adv. Mr. Korada Pramod Kumar, Adv.

Counsels For Respondent(s) Mr. Ashok Kumar Gupta II, AOR Mr. Shankar Divate, AOR

Case Details: BASAVARAJ VERSUS INDIRA AND OTHERS, CIVIL APPEAL NO. 2886 OF 2012

Citation : 2024 LiveLaw (SC) 178

Click Here To Read/Download The Judgment