Smt. Amna Begum vs Smt. Sushila Bai

Heard on admission.

Challenge put forth in this petition under Article 227 of the Constitution of India is to an order dated 16-12-2010 passed by the Fifth Additional District Judge (Fast Track Court) to the Court of Third Additional District Judge, Chhindwara, in Civil Suit No. 3-A/2010 whereby an application preferred by the petitioner, who is defendant No. 5 in the suit, under Order 6 Rule 17 of the Code of Civil Procedure, 1908 has been rejected.

The suit filed by respondent Nos. 1 and 2 is for declaration, partition and for getting their share in suit property. The petitioner herein filed her written statement on 04-10-2010. Thereafter on 16-12-2010 she filed an application under Order 6 Rule 17 of the CPC proposing amendment in the written statement on the ground that certain important facts were left out in the written statement filed by her. The petitioner/defendant proposed to add paragraphs 19-A and 19-B in the written statement.

The trial Court by the impugned order dated 16-12-2010 rejected the application holding that on the basis of the rival pleadings issues have been framed and the plaintiff has already closed his evidence. The trial Court further recorded that there is no proper explanation tendered by the petitioner as to why the proposed averments were not pleaded when the written statement was filed.

The question is whether the trial Court was within its jurisdiction and justified in rejecting the application preferred by the petitioner seeking amendment in the written statement, admittedly, at a stage when the plaintiff has already closed his evidence. Order 6 Rule 17 of the CPC provides for :

Amendment of pleadings.

The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties :

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.

The aforesaid provision and more particularly the proviso came up for consideration before the Supreme Court in the case of Vidyabai and Others Vs. Padmalatha and Another, . In paragraph 10 wherein, it is observed that, the proviso to Rule 17 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 the commencement of the trial". It is further held in paragraph 19 that " It is the primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the Court. It puts an embargo on exercise of its jurisdiction. The court''s jurisdiction in a case of this nature is limited. Thus, unless the jurisdictional facts, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint".

In the case at hand admittedly the plaintiff has recorded his entire evidence and the matter is now for recording evidence of respective defendants. Apparently, the petitioner intends to raise certain points which, as per her own submission, could not be put forth in the written statement which was filed by her.

These averments admittedly are not based on any subsequent development accruing after filing of the written statement but were in existence at the time when the written statement was filed. No explanation is being tendered as to why the said averments were not pleaded in the written statement.

In view whereof the trial Court in our considered opinion was well within its right in rejecting the application preferred by the petitioner seeking amendment in the written statement.

Furthermore, since the scope of interference in writ jurisdiction under Article 227 of the Constitution of India is confined to the extent that subordinate courts remain within their bounds of authority (please see Waryam Singh and Another Vs. Amarnath and Another, & Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, ; and in the instant case since the trial Court was within its jurisdiction in rejecting the application as the same being not in consonance with the provisions of Order 6 Rule 17 of the CPC, we are not inclined to interfere with the impugned order.

In the result petition fails and is hereby dismissed. No costs.