O.6 R.17 CPC | Adopt Liberal Approach To Amendments Before Trial Unless It Causes Irreparable Prejudice To Opposite Party: J&K High Court

A bench of Justice M A Chowdhary added that whenever an amendment is sought before the commencement of a trial, a lenient view may be taken keeping in mind that the opposite party would have a chance to meet the case set up by amendment.

The court made these observations while hearing a plea challenging an order passed by the Court of Sub Judge, Chadoora in terms of which an application seeking leave to amend her civil suit had been rejected.

The issue stemmed from a dispute over ancestral property in Budgam district. The plaintiff, Haja Alias Hajira Bano, filed a partition suit against her brother and other family members. After the initial pleadings, she sought to amend the plaint to include a newly discovered sale deed involving part of the property.

The trial court rejected the amendment application, citing Order 2 Rule 2 of the CPC, which bars subsequent suits for claims omitted from the initial suit.

Overturning this trial court order Justice Chowdhary clarified that Order 2 Rule 2 applies only to separate suits, not amendments within an existing one.

Emphasising that the trial court had misdirected itself in rejecting the amendment application, as it did not consider the liberal approach required before the commencement of the trial the bench observed,

“Where the amendment is sought before commencement of the trial, which is the position in the present case as well, the Court is required to be liberal in its approach. The Court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up by amendment, as such, where the amendment does not result in any irreparable prejudice to the opposite party or divests the opposite party of an advantage which it had secured as a result of admission by the party seeking amendment, the amendment is required to be allowed”.

Stressing the essentiality of an amendment to determine the real controversy between the parties the court noted that the Petitioner/Plaintiff had sought amendment with regard to mentioning of a sale deed with regard to a portion of the Suit property and, therefore, it was necessary for the Trial Court, for effective adjudication of the controversy between the parties, to allow the amendment sought by the petitioner.

Accordingly, the application moved by the Petitioner/ Plaintiff before the trial court for amendment of the Plaint was allowed and the Trial Court was directed to take on record the Amended Plaint for further proceedings in the case as per law.

Case Title: Haja @ Hajira Bano Vs Gh. Mohammad Ahangar

Citation: 2024 LiveLaw (JKL) 6

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