Due Diligence Test Under Order VI Rule 17 CPC Not Of Universal Application After Commencement Of Trial: Karnataka High Court

The Court was hearing a writ petition under Articles 226 and 227 of the Constitution challenging an order of the Trial Court which had rejected an application for amendment of the plaint filed under Order VI Rule 17 CPC after commencement of trial.

A Bench of Justice Anant Ramanath Hegde observed: “The due diligence test contemplated in the proviso to Order VI Rule 17 of the Code cannot have universal application on every application seeking amendment of pleadings, filed after commencement of trial. In appropriate cases, even if the due diligence test is not satisfied, the Court’s power to permit amendment of pleadings is not taken away”.

Background

The petitioners had instituted a suit seeking a declaration that a sale deed executed in favour of the defendants was void, along with a consequential relief of injunction restraining interference with possession.

The defendants contested the suit by asserting title and possession based on the sale deed. During the course of the trial, after examination of witnesses, the plaintiffs moved an application seeking amendment of the plaint to incorporate a plea that they had been dispossessed during the pendency of the suit and to add a consequential prayer for possession.

The Trial Court dismissed the amendment application on multiple grounds, including delay of ten years, failure to satisfy the due diligence requirement under the proviso to Order VI Rule 17 CPC, alleged nullification of admissions made in evidence, and the view that the amendment was unnecessary for adjudication.

Aggrieved, the plaintiffs approached the High Court.

Court’s Observations

The High Court undertook an exhaustive examination of the scope, object, and limits of the proviso to Order VI Rule 17 CPC as introduced by the 2002 amendment.

The Court noted that Order VI Rule 17, post-amendment, consists of two parts: the main provision empowering amendment “at any stage of the proceedings”, and the proviso restricting amendments after commencement of trial unless due diligence is shown.

The Court held that the proviso cannot be read as completely overriding or nullifying the main provision.

The Court observed that a literal and inflexible application of the proviso would defeat the very purpose of Order VI Rule 17, namely, the determination of the real questions in controversy and avoidance of multiplicity of proceedings.

Relying on decisions of the Supreme Court, including Salem Advocate Bar Association v. Union of India and Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji, the Court noted that the object of introducing the proviso was to prevent frivolous and mala fide amendments intended to delay trials, and not to take away the Court’s substantive power to permit necessary amendments.

The Court held that the relevance of the due diligence test depends on the nature of the amendment sought, and not merely on the stage at which the application is filed.

The Court enumerated, illustratively, categories of amendments which may be permitted even after commencement of trial without strict insistence on due diligence, including but not limited to:

• correction of clerical or typographical errors;
• correction of the misdescription of the property;
• incorporation of subsequent events occurring during the pendency of the suit;
• addition of consequential or ancillary reliefs;
• furnishing better particulars or additional facts in support of existing pleadings;
• seeking alternative or lesser reliefs based on the same foundational facts.

The Court emphasised that rejection of such amendments solely on the ground that the trial has commenced would lead to injustice and unnecessary multiplicity of litigation.

On the issue of delay, the Court held that mere lapse of time is not determinative. What matters is whether the relief sought by way of amendment is within limitation and whether it flows from facts already pleaded. Where the limitation is arguable or dependent on evidence, the issue can be kept open for trial.

The Court further held that an amendment cannot be rejected merely because it appears to contradict an admission made in evidence. Admissions are not always conclusive and may be explained, qualified, or tested during trial. At the stage of amendment, the Court is not required to adjudicate the truth or correctness of the proposed pleadings.

The Court also rejected the view that the amendment changed the nature of the suit, holding that a change in the nature of relief does not necessarily amount to a change in the nature of the suit, particularly where the foundational claim of title remained unchanged.

The Court observed that even in cases where the proviso creates difficulty, courts may invoke their inherent powers under Section 151 CPC to permit amendments necessary to do complete justice and prevent abuse of process.

Conclusion

Holding that the Trial Court had applied the proviso to Order VI Rule 17 CPC mechanically and without appreciating its limited role, the High Court allowed the writ petition.

The impugned order rejecting the amendment application was set aside. The amendment was permitted subject to payment of costs, with liberty to the defendants to file an additional written statement.

The Court clarified that it had not expressed any opinion on the merits of the dispute, including the question of dispossession, which was left open for determination at trial.

Cause Title: Mohammadrafi v. Bandenawaz (Neutral Citation: 2025:KHC-D:18339)

Appearances

Petitioners: Pranav Badagi, Advocate

Respondents: Maqboolhamed M. Patil, Advocate

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