Prakash Krishnani And Ors vs Anil Sao And Ors

Sanjay K. Agrawal, J

This writ petition is filed by the petitioners / defendants questioning the order passed by the trial Court whereby the application filed by the

defendants under Order 6 Rule 17 of CPC for incorporating amendment has been rejected.

Learned counsel for the petitioners / defendants submits that the impugned order is unsustainable and bad in law as the amendment is absolutely

necessary for just and proper disposal of the suit.

I have heard learned counsel for the petitioners and perused the impugned order.

The trial Court has clearly held that trial has commenced and the plaintiffs evidence has already been closed therefore, the application filed by the

defendants under Order 6 Rule 17 of CPC for leave to amendment is not entertainable and there is no compliance with proviso to Order 6 Rule 17 of

the C.P.C.

In the decision rendered by Hon'ble Supreme Court in the matter of Vidyabai and others v. Padmalatha and another (2009) 2 SCC 409, the

Supreme Court held as under :-

By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 rule 17 of

the Code, which reads as under :

Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of

due diligence, the party could not have raised the matter before the commencement of trial.

It is couched in a mandatory form. The court's jurisdiction  to allow such an application is taken away unless the conditions precedent therefor are

satisfied viz. It must come to a conclusion that in spite of due diligence the parties could not have raised the matter before he commencement of the

trial.

The Supreme Court has clearly held that proviso to Order 6 rule 17 of the C.P.C. is mandatory and the petitioner has not taken care of to make

statement complying with the proviso to Order 6 Rule 17 of the C.P.C.

Indisputably, the application has been filed by the petitioners / defendants after the commencement of trial and there is no compliance of proviso to

Order 6 Rule 17 of CPC. The petitioners have failed to assign plausible reason why in spite of due diligence amendment application could not be made

before the commencement of trial.

As such, I do not find any merit in the writ petition. The writ petition deserves to be and is hereby dismissed. No order as to cost(s).