Can't Allow Amendment To Plaint After Commencement Of Trial Merely Because Applicant Was Illiterate, No Due Diligence Shown: Bombay HC

A single judge bench of Justice S. M. Modak was considering the petitioners' (defendants) challenge to the Trial Court's order, which allowed respondent no. 1's (plaintiff) application for amendment of the plaint after the trial had commenced.

The Trial Court allowed the application on the ground that the plaintiff was an aged lady, illiterate and got the certified copies of the sale deeds recently. It held that the amendment was necessary to decide the real controversy between the parties.

Through the amendment, the plaintiff sought to show how the sale deeds executed by defendant No.1 in favour of various persons were not binding on her.

The High Court observed that the test of 'real controversy' is applicable only when the amendment is asked for prior to the commencement of the trial. It stated that after commencement of the trial, the test of 'due diligence' is applicable.

It observed for this test is for curtailing the vexatious amendments sought under Order 6, Rule 17 of CPC. It stated “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.”

Here, the Court noted that the plaintiff already provided averments about the sale deeds in her plaint. It noted that she was aware that the suit property was sold by defendant No.1 to third persons and that the mutation was carried out with respect to the lands sold.

The Court opined that the plaintiff was not diligent in prosecuting the suit. It remarked, “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.”

It noted that the suit was filed in 2015 and the amendment was sought in 2022. It stated that the amendment was sought after a long gap.

Noting that there was a proper stage for the plaintiff to take steps for collecting the sale deeds, the Court opined that the amendment should not have been allowed once the cross-examination began.

It thus set-aside the Trial Court's order.

Case title: Ganpat Bhagoji Kshirsagar & ors. vs. Anjana Krushna Jamdade & anr. (Writ Petition No.10831 of 2023)