Introduction:

In a recent decision, the Bombay High Court set aside an order permitting an amendment of the plaintiff after the commencement of the trial, ruling that the plaintiff, despite being an illiterate elderly lady, had failed to demonstrate “due diligence” in prosecuting the case. The case in question involved a dispute over sale deeds, and the court found that the plaintiff had been aware of the sales long before the filing of the suit. The judgment was delivered by a single-judge bench of Justice S. M. Modak, who emphasized the necessity of applying the principle of ‘due diligence’ once the trial has commenced, as per Order 6, Rule 17 of the Civil Procedure Code (CPC).

The ruling came in response to a petition filed by the defendants challenging the order of the Trial Court, which had allowed the plaintiff to amend her plaint after trial proceedings had begun. The plaintiff had sought to argue that certain sale deeds executed by defendant No.1 in favor of third parties were not binding on her. The High Court, however, ruled that the plaintiff’s lack of action and delay in seeking certified copies of the sale deeds did not amount to exercising due diligence, as she was aware of the sales well before filing the suit in 2015.

Case Background:

The dispute revolves around a suit filed by the plaintiff (respondent no. 1) against the defendants (petitioners), challenging several sale deeds executed by defendant No.1 concerning the suit property. The plaintiff contended that these sale deeds, executed in favor of various third parties, were not binding on her. She had filed the suit in 2015, after learning about the transfer of ownership. However, in 2022, after the commencement of the trial and the initiation of cross-examinations, the plaintiff sought an amendment to the plaint, arguing that she had recently obtained certified copies of the sale deeds in question and needed to amend the plaint to include relevant details.

The Trial Court allowed the plaintiff’s application for amendment, primarily on the grounds that she was an elderly and illiterate woman, and had only recently obtained the certified copies of the sale deeds. The court ruled that the amendment was necessary to properly adjudicate the controversy between the parties and reach a fair resolution.

Plaintiff’s (Respondent No.1) Arguments:

The plaintiff, respondent no. 1, argued that as an elderly and illiterate woman, she could not obtain the necessary certified copies of the sale deeds earlier. Her counsel contended that the amendment was crucial to determining the real controversy between the parties and ensuring that justice was served. The plaintiff’s legal team also emphasized that without the amendment, the plaintiff’s case would be severely prejudiced, as the sale deeds executed by defendant No.1 were the crux of the dispute. They insisted that the Trial Court’s decision to allow the amendment was correct, as it enabled the plaintiff to present her full case before the court.

The plaintiff also asserted that her failure to include details about the sale deeds earlier was not due to negligence, but rather due to her inability to access the necessary documents in a timely manner. The amendment, she argued, was necessary to highlight how the sale deeds executed by defendant No.1 were not binding upon her.

Defendants’ (Petitioners’) Arguments:

The defendants, who challenged the Trial Court’s order allowing the amendment, argued that the plaintiff was well aware of the sale deeds before filing the suit and had failed to act in a timely manner. They contended that allowing the amendment at this late stage—after the trial had commenced and cross-examinations had begun—would significantly prejudice their case. The defendants maintained that the plaintiff’s claim of recently obtaining certified copies of the sale deeds was insufficient to demonstrate ‘due diligence,’ as required by Order 6, Rule 17 of the CPC.

They further argued that the principle of ‘real controversy’ applies only when an amendment is sought before the commencement of the trial. Once the trial has started, the test of ‘due diligence’ becomes applicable, and any amendments sought after the trial begins must be carefully scrutinized to prevent unnecessary delays and vexatious claims. The defendants emphasized that the plaintiff’s delay in seeking the amendment—seven years after filing the suit—demonstrated a clear lack of diligence.

Court’s Judgment:

The Bombay High Court, after hearing both parties, set aside the Trial Court’s order allowing the amendment of the plaint. Justice S. M. Modak, delivering the judgment, emphasized the critical difference between amendments sought before and after the commencement of a trial. He clarified that before the trial begins, the court can allow amendments based on the principle of ‘real controversy,’ ensuring that all necessary issues are considered for a fair decision. However, once the trial has commenced, the principle of ‘due diligence’ comes into play, which limits the scope of amendments to prevent delays and potential injustice to the opposing party.

Justice Modak pointed out that the plaintiff was already aware of the sale deeds executed by defendant No.1 in favor of various third parties and that she had included references to these sales in her original plaint. The Court held that merely being an elderly and illiterate woman did not excuse the plaintiff’s lack of diligence in prosecuting the suit or seeking the necessary documents earlier. The Court stated, “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 High Court found that the plaintiff had ample opportunity to obtain certified copies of the sale deeds before the trial began and that seeking an amendment after cross-examinations had started would be unfair to the defendants. The Court noted that the suit had been filed in 2015, and the plaintiff had waited until 2022 to seek the amendment—a delay that could not be justified under the ‘due diligence’ standard.

Furthermore, the Court observed that the purpose of the proviso under Order 6, Rule 17 of the CPC was to prevent vexatious amendments that could unduly prolong trials and disrupt the positions taken by the parties. The Court reasoned that allowing the plaintiff to amend her plaint at this stage would effectively allow her to take a new stand that could harm the defendants’ case, which had already been built based on the original pleadings.

In light of these considerations, the High Court concluded that the plaintiff had failed to demonstrate ‘due diligence’ in prosecuting the suit or in seeking the amendment. As a result, the Court set aside the Trial Court’s order allowing the amendment and ruled in favor of the defendants.