Gulshan Darius Dastur And Ors vs Pervin Adil Jassawala
- Court
- Bombay High Court
CNR No : HCBM010512082026
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 13878 OF 2026
1. Dr. (Mrs.) Gulshan Darius Dastur
Age : 72 years, Occupation : Doctor,
having her address at 5B,
Karai Estate, 248, Tardeo Road,
Mumbai – 400 007 and
Permanent address at Nawas Villa,
Yagnik Road, Rajkot – 360 001,
Gujrat.
Digitally
signed by
SUFIYAN
EHTESHAM
SYED
Date:
2026.11.03
19:06:18
+0530
SUFIYAN
EHTESHAM
SYED
2. Dr. Fardun Burjor Dastur,
Age : 69 years, Occupation : Doctor,
Having his address at 2-B,
Pil Court, 111, Maharshi Karve Road,
Mumbai – 400 020.
3. Mrs. Aban Gev Patel,
Age : 65 years, Occupation : Advocate,
having her address at 42,
Spenta, Gibbs Road, Malabar Hill,
Mumbai – 400 006. .. PETITIONERS
V E R S U S
Mrs. Pervin Adil Jassawala,
An Adult, Indian Inhabitant,
having her address at Flat No. 3B,
Third Floor, Karai Estate,
248, Tardeo Road, Mumbai – 400 007
and residing at No. 579,
th rd
6 Cross Hal 3 Stage New
Thippasandra Post Office
Banglore – 560 075. .. RESPONDENT
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Sr. Adv. Gaurav Joshi a/w. Adv. Piyush Raheja a/w Adv. Sahil Gandhi a/w.
Adv. Kajol Punjabi Adv. Darshil Desai i/b. Markand Gandhi & Co.,
Advocate for Petitioners.
Adv. Nirav Barot, for the Respondent.
CORAM : ARUN R. PEDNEKER, J.
th
RESERVED ON : 30 OCTOBER 2026
rd
PRONOUNCED ON : 3 NOVEMBER 2026
JUDGMENT :-
1. Rule. Rule made returnable forthwith and heard finally with consent
of learned Counsel appearing for the parties.
By the present Petition, the Petitioners challenge the order dated
01.10.2026 passed below Exhibit 35 in the Civil Suit pending before the
Small Causes Court at Mumbai, whereby the application for amendment of
Written Statement filed by the Respondent/Defendant has been allowed.
The facts giving rise to the present Petition in brief are as under :-
2. The Petitioners are the original Plaintiffs, co-owners and landlords of
the property known as Karai Estate, 248, Tardeo Road, Mumbai – 400 007
(“the suit property”). The Respondent is the original Defendant in the suit
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and is a monthly tenant of the Flat No. 3B, 3 Floor, Karai Estate, 248,
Tardeo Road, Mumbai – 400 007 (“the suit premises”), being the daughter
and sole legal heir of the original tenant, late Godrej K. Irani.
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3. The suit premises were let out to Mr. Godrej K. Irani for residential
purposes. The original tenant passed away on 22.10.2006, and his wife had
also predeceased him. The Respondent, being the only daughter and sole
legal heir of the original tenant, is the monthly tenant of the suit premises.
4. In June 2022, the Petitioners instituted R.A.E. Suit No. 844 of 2022
before the Small Causes Court at Mumbai under Section 33 read with
Section 16(1)(n) of the Maharashtra Rent Control Act, 1999, seeking
recovery of possession of the suit premises on the ground that the
Respondent had not been using the suit premises for the purpose for which
she was let out for a period of more than six months immediately preceding
the filing of the suit, without any reasonable cause.
5. The Respondent appeared and filed a Written Statement on
05.09.2022, denying the ground of non-user.
6. By order dated 11.10.2022 passed below Exhibit - 13, the Trial Court
framed the issues and directed the Plaintiffs to commence their evidence. On
20.02.2023, PW-1 filed her affidavit-in-examination-in-chief. The evidence
of PW-1 was completed on 10.08.2023.
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7. On 10.10.2023, the second witness for the Plaintiffs filed his affidavit-
in-examination-in-chief, along with a list of documents, which was taken on
record. The documents relied upon are as follows :-
(i) a certified copy of the Order and Judgment dated 9th July
2019 passed by the Hon'ble High Court of Karnataka in
Writ Petition No. 14901 of 2019, filed by the Respondent
herself, in which she is described as residing at No. 579, 6th
Cross, HAL 3rd Stage, Bangalore - 560 075;
(ii) a certified copy of Arbitration Petition No. 36 of 2022 before
the Hon'ble City Civil Court at Bengaluru, in which the
Respondent is a party and her address is shown at
Bangalore;
(iii) a print-out of the master data of Mahalaxmi Properties Pvt.
Ltd. from the official website of the Ministry of Corporate
Affairs;
(iv) a print-out of an Award dated 25th January 2019 from the
official website of the Council for Insurance Ombudsmen,
on a complaint of the Respondent showing her address at
Bangalore; and
(v) a certificate dated 10th October 2023 in respect of the
electronic records.
8. On 30.10.2023, the Respondent filed a say in response to the
documents relied upon by PW-2, objecting to the same on the ground that
the evidence was beyond the pleadings. It was contended that, unless the
Plaintiffs amend the plaint to incorporate the facts relating to the documents
referred to and relied upon in the list of documents, the Defendant would not
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get an opportunity to file an additional Written Statement and defend the
said documents.
9. The Plaintiffs/Petitioners filed an application at Exhibit - 23 on
04.11.2023, seeking leave under Order VII Rule 14(3) of the Code of Civil
Procedure, 1908, to produce the documents filed along with the affidavit-in-
examination-in-chief of PW-2. The Respondent opposed the said application
by filing a Reply. By order dated 28.11.2023, the Trial Court allowed the
application at Exhibit - 23.
10. The Respondent thereafter filed an application dated 12.03.2024 at
Exhibit 26, seeking rejection of the evidence and documents of PW-2,
contending that the documents had not been pleaded in the plaint and that
the Defendant had no opportunity to explain the same in the Written
Statement. The trial Court partly allowed Exhibit - 26 and directed the
Respondent to cross-examine PW-2 by ignoring the evidence and
documents which are beyond the pleadings .
11. By order dated 25.09.2025 (Order on admissibility of documents of
P.W. No. 2), the Trial Court overruled the Respondent’s objections and
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marked the documents as exhibits, observing in Paragraph 4 as under :
4. It is made clear that exhibition of a document and proof of
its contents along with its genuineness are independent
aspects. Mere exhibition does not mean that it is proved as
per the provisions of Indian Evidence Act.
12. Thereafter, the Respondent/Defendant filed an application dated
10.02.2026 (Exhibit 35), seeking to amend her Written Statement by
inserting Paragraph Nos. 6(a), 6(b) and 6(c), thereby seeking to incorporate
the following paragraphs :-
6(a) This Defendant submits that this Defendant got married on
31.5.1981 with Adil This Defendant submits that the said
Adil. This Defendant submits 31.5.1981 with Adil. This
Defendant that the said Adil was residing at Kothari Hall,
Venkaraswamy Naidu Road, Bangalore Defendant submits
that after marriage she started at 560 051. This Bangalore.
This residing with her husband Defendant submits that till
end of December 2005 this Defendant was residing at
Bangalore as well as at suit premises. This Defendant
submits that this Defendant's father Godrez Kaikhushri Irani
was residing in the suit premises and was tenant of suit 22nd
October 2006. This premises and expired on Defendant
submits that this Defendant's father was not keeping good
health and therefore this Defendant started residing with her
family members in the suit premises to look after her father
since 2006 and submits that this onwards. This Defendant
Defendant's son Ariez married on 4th June 2015 and
thereafter her son and his family members and his
Bangalore. two children at This staying are Defendant
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submits that second son Danesh was born on 29 April
1986. This Defendant submits that this Defendant, her
second son and her husband are residing in Mumbai since
2006 till date. This Defendant submits that this Defendant
was residing in Mumbai before her marriage. This
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Defendant submits that 3rd child, daughter Anahieter was
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born on 29 December 1987 and presently she is residing
with her husband. at Adelaide at Australia. This Defendant
crave leave to refer to and rely upon the birth certificate of
her sons and two grand children when produced.
6(b) This Defendant submits that this Defendant's late father and
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Noshir Minmoo Kapadia by Deed of Sale dated 27 March
1992 sold, transferred and conveyed the premises bearing
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House No.579 HAL 3 stage, Bangalore 560 075 to this
Defendant. This Defendant crave leave to refer to and rely
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upon the said Deed of Sale dated 27 March 1992 when
produced.
6(c) This Defendant submits that this Defendant and her husband
created company namely Mahalaxmi Properties Pvt. Ltd. on
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10 February 2006 and the said company was closed by this
st
Defendant and her husband on 31 March 2007. This
Defendant submits that this Defendant's husband was
looking after disputes about agricultural land and Award
passed at. Bangalore. This Defendant submits that this
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Defendant was hospitalized in Manipal Hospital on 9
March 2018 at Bangalore. This Defendant therefore filed the
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complaint for mediclaim and the Order was passed on 25
January 2019. This Defendant submits and his family
members are residing at Bangalore and therefore this
defendant took medical treatments at Bangalore for that this
Defendant's elder son some period.
The application for amendment is allowed by the impugned order dated
01.10.2026 passed below Exhibit – 35.
13. Challenging the impugned order, the learned Senior Counsel Mr.
Gaurav Joshi for the Petitioners submits that the impugned order is contrary
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to the mandatory proviso of Order VI Rule 17 of the Code of Civil
Procedure, 1908, which provides that no application for amendment shall be
allowed after the commencement of the trial unless the Court comes to the
conclusion that, despite due diligence, the party could not have raised the
matter before the commencement of the trial. It is submitted that the facts
sought to be introduced by way of Paragraph Nos. 6(a) to 6(c) were already
within the knowledge of the Defendant/Respondent. As such, unless the
Trial Court records a finding on the aspect of due diligence, the application
for amendment could not have been allowed.
14. It is further submitted that the trial Court has erroneously applied
different test at Paragraph No. 16 as under :-
16. While considering this application it is to be taken into
consideration :
A) Whether the amendment is necessary for the purpose of
determining the real question in controversy ?
B) Whether it will affect to the interest of plaintiffs ?
C) Whether it will change the nature of suit ?
15. The Trial Court, after considering the aforesaid tests and facts of the
case, observed that the Plaintiffs had filed the affidavit of PW-2 along with a
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list of documents after obtaining the Court’s permission. The Defendant had
raised objections to the said affidavit by filing an application at Exhibit - 26,
which was partly allowed. Considering the Order VI Rule 17 of the Code of
Civil Procedure, 1908, the Trial Court observed that, although the Defendant
had filed the application for amendment after commencement of the trial, the
facts sought to be introduced by way of amendment were in response to the
documents filed and exhibited by PW-2. Hence, there was no delay or lack
of due diligence on the part of the Defendant in filing the application. The
Trial Court further observed that the amendment sought by the Defendant
was necessary for the proper adjudication of the matter on merits.
16. Learned Counsel for the Petitioners further submits that the test
adopted by the Trial Court is erroneous. The Court ought to have considered
that the facts now sought to be pleaded in Paragraph Nos. 6(a) to 6(c),
relating to the Respondent’s marriage, her residence in Bangalore, her son’s
residence in Bangalore and her hospitalization in Bangalore, pertain to the
Respondent’s own life and admittedly occurred several years before she filed
her Written Statement in 2022. It is submitted that the Respondent had, in
fact, suppressed this information and offered no explanation in her Written
Statement for her stay in Bangalore, despite the Plaintiffs having specifically
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alleged non-user of the suit premises. It is, therefore, contended that none of
the aforesaid facts can, by any stretch of imagination, be said to be matters
which could not have been raised earlier despite the exercise of due
diligence.
17. The facts sought to be introduced were within the personal knowledge
of the Defendant and were not disclosed merely by virtue of the documents
produced by the Petitioners. The documents exhibited by the Plaintiffs are
the Respondent’s own documents, namely, the Writ Petition filed by the
Respondent before the High Court of Karnataka. Further, by order dated
28.11.2023, the Trial Court had observed that the said documents were
within the Respondent’s personal knowledge. The Trial Court has failed to
take this aspect into consideration. In any event, the documents were filed on
10.10.2023, whereas the application for amendment was filed in January
2026, resulting in an inordinate delay of more than two years, for which no
explanation has been offered. The learned Counsel further submits that the
facts now pleaded takes away the admission made in favour of the
Petitioners in the Written Statement.
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18. The learned Counsel for the Petitioners relies upon the following
Judgments :-
i) Modi Spinning & Weaving Mills Co. Ltd. And Another vs.
Ladha Ram & Co. reported in (1976) 4 SCC 320.
ii) Harmani Sahoo and others vs. Lalita Nayak and others
reported in 2026 SCC OnLine 2123.
iii) Chandrashekar s/o Pandurang Tumsare vs. Dr.
Balkrishna s/o Shivkaran Changani (Sharma) and others
reported in 2016 SCC OnLine Bom 120.
iv) Vidyabai and others vs. Padmalatha and another reported
in (2009) 2 SCC 409.
v) Sagar Prabhale & Associates through its Partner Sagar
Ramchandra Prabhale vs. Dilip Sandipani Pore & Others
in Writ Petition No. 12210 of 2023 in the order dated
05.10.2023.
19. Per contra, learned Counsel Mr. Nirav Barot appearing for the
Respondent submits that the case pleaded in the plaint, filed in June 2022, is
that the Defendant had not been residing in the suit premises for a period of
more than six months immediately preceding the filing of the suit. Thus, the
Defendant was required to demonstrate that she was residing in the suit
premises during the said six-month period, i.e., at least until January 2022.
20. Learned Counsel submits that the Trial Court has observed that the
question of due diligence does not arise in the present case, since the
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documents were filed by PW-2 and the Defendant filed the application for
amendment of Written Statement in response to those documents. He,
therefore, submits that the order passed by the Trial Court is correct and that
this Court ought not interfere with the same.
21. The learned Counsel for the Respondent relies upon the following
Judgments :-
i) Usha Balasaheb Swami and others vs. Kiran Appaso
Swami and others reported in (2007) 5 SCC 602.
ii) Baldev Singh and others vs. Manohar Singh and another
reported in (2006) 6 SCC 498.
iii) Bharat Petroleum Corporation Ltd. vs. Precious Finance
Investment Pvt. Ltd. Reported in 2007 (1) Mh.L.J.
iv) Life Insurance Corporation of India vs. Sanjeev Builders
Private Limited and another reported in (2022) 16 SCC 1.
22. Having considered the rival submissions, the issue that arises for
consideration before this Court is :- Whether the application filed by the
Defendant for amendment of the Written Statement satisfies the test laid
down under Order VI Rule 17 of the Code of Civil Procedure, 1908,
particularly the proviso thereto ?
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For ready reference, Order VI Rule 17 of the Code of Civil Procedure, 1908,
is reproduced below :-
ORDER VI :-
17. 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 questions
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 proviso requires the Court to arrive at a conclusion that, despite the
exercise of due diligence, the party could not have raised the matter before
the commencement of the trial. In the present case, the trial commenced
when the issues were framed on 11.10.2022, and the evidence of PW-2 has
also commenced.
23. The documents filed by PW-2 were objected to by the Defendant.
Pursuant to which the Trial Court passed two orders, one below Exhibit - 26
and the other dated 25.09.2025 (Order on admissibility of documents of P.W.
No. 2). By the order passed below Exhibit - 26, the Trial Court directed the
Defendant to cross-examine the Plaintiffs’ witness while disregarding the
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evidence and documents that were beyond the pleadings. Further, while
admitting the documents on record by order dated 25.09.2025, the Trial
Court observed that the execution of the documents, proof of their contents
and their genuineness are independent aspects, and that merely marking a
document as an exhibit does not amount to proof of the document in
accordance with the provisions of the Evidence Act.
24. By the aforesaid two orders, the Defendant is protected to the extent
that, if the documents are found to travel beyond the pleadings, the same can
be rejected at the stage of final hearing. The documents filed by PW-2 also
prima facie indicate that the Defendant has been contesting cases before the
Courts at Bangalore, reflecting her residence in Bangalore. However, in her
Written Statement, the Defendant has clearly stated that she has been
residing in Mumbai since her birth and that her family resides in the suit
premises. She has further stated that, prior thereto, her parents were residing
in the suit premises. The Defendant has specifically pleaded that she was
born, brought up, educated and has been residing in the suit premises
“continuously from the date of her birth till today.”
25. The aforesaid facts pleaded in the Written Statement have been
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controverted by the Petitioners by producing evidence to show that the
Defendant has been residing in Bangalore. The Defendant now seeks to
introduce a case by way of amendment that she has been residing both in
Bangalore and Mumbai. She seeks to place on record that she got married in
1981 and thereafter resided in Bangalore with her husband. She further seeks
to plead that she continued to reside in Bangalore until 2005. Her father was
residing in the suit premises and passed away on 22.10.2006. The
Defendant, therefore, claims that she started residing in the suit premises
from 2006 onwards to look after her father and after his demise continued to
reside in the suit premises. It is further stated that her son got married on
04.06.2015 and that, thereafter, her son, along with his family members and
two children, has been residing in Bangalore.
26. The Defendant further seeks to plead that she, along with her second
son and husband, has been residing in Mumbai since 2006 till date. Her third
daughter is married and is presently residing in Australia. She also seeks to
place on record that, by a Sale Deed executed in 1992, her father transferred
the premises in Bangalore in her name. The Defendant and her husband
incorporated a company, namely, Mahalaxmi Properties Limited, on
10.02.2006, which was closed on 31.03.2007. It is further stated that her
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husband was looking after disputes relating to agricultural land and an award
passed in Bangalore. The Defendant also seeks to plead that she was
hospitalized in Bangalore in March 2018 and, accordingly, filed a
mediclaim, pursuant to which an order was passed in Bangalore Court on
25.01.2019.
27. The facts now sought to be introduced by the Defendant were clearly
within her personal knowledge. In the suit, she has taken a specific stand that
she has been continuously residing in the suit premises from her birth until
the date of filing of the Written Statement. The documents now brought on
record may indicate otherwise, and the Defendant seeks to explain those
documents by way of an amendment to the Written Statement. The difficulty
with the amended Written Statement is twofold :-
I) The amendment prejudices the case of the Plaintiffs, as the Defendant
had categorically admitted that she was residing in the suit premises from
her birth until the date of filing of the Written Statement. The said admission
has now been controverted by certain documents placed on record by the
Plaintiffs. The Defendant now seeks to alter her original stand by
introducing an explanation in the Written Statement. This would cause
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prejudice to the Plaintiffs, which cannot be adequately compensated in
terms of money. The Plaintiffs have taken efforts to bring the relevant
documents on record to demonstrate that the Defendant is residing in
Bangalore and not in Mumbai. The effect and evidentiary value of those
documents will be considered by the Trial Court at the appropriate stage.
However, by permitting the amendment, the Defendant is now seeking to
introduce facts that were within her personal knowledge from the outset and
thereby controvert the case originally pleaded by her. Although the
Defendant is entitled to raise multiple pleas in a Written Statement, the
Defendant cannot be permitted to withdraw or resile from admissions
already made in the original Written Statement.
In this regard, reliance can be placed on the following judgments :-
A) The Hon’ble Supreme Court in the case of Modi Spinning & Weaving
Mills Co. Ltd. & Anr. (supra) has observed that inconsistent pleas may be
raised in the pleadings. However, it was observed that the effect of the
proposed substitution in the said case was not merely to introduce
inconsistent alternative pleadings, but to completely displace the Plaintiffs
from the admissions made by the Defendant in her Written Statement. It was
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observed that, if such an amendment is allowed, the Plaintiffs would be
irretrievably prejudiced, as they would be deprived of the opportunity to rely
upon and extract admissions from the Defendant. The facts of the case are
noted in paragraph Nos. 5 and 6 and the Court’s observation at Paragraph
No. 10 as under :
5. Two paras of the Written Statement contained additional
pleas. Para 25 states that the agreement dated April 7, 1967
is applicable to the transactions in which the plaintiff works
as stockist-cum-distributor of the defendants. The
defendants further allege in para 25 that the agreement is
not applicable to transactions in which the plaintiff acts as a
principal. In para 26 the defendants-appellants in the
alternative allege that even if agreement dated April 7, 1967
is applied to the dealings in suit, plaintiff's position is merely
that of an agent of the defendants and as such plaintiff is not
entitled to claim any damages from the defendants for non-
supply of its own goods for sale through the plaintiff.
6. The defendants-appellants approximately 3 years after the
filing of the Written Statement made an application for
amendment of the Written Statement. The proposed
amendments were for deletion of paras 25 and 26 and for
substitution of two new paras 25 and 26. The proposed
amendment in para 25 was that by virtue of the agreement
the plaintiff was appointed a mercantile agent and the
plaintiff acted in that capacity in placing orders on the
defendants. The defendants further denied the allegation of
the plaintiff that the plaintiff placed orders with the
defendants in the plaintiff's capacity as a purchaser. The
defendants also alleged that the plaintiff throughout acted as
an agent of the defendants. In para 26 of the proposed
amendment it was alleged by the defendants that being a
mercantile agent and an agent of the defendants in
accordance with the terms of the agreement, the plaintiff has
no locus standi to file the suit.
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10. It is true that inconsistent pleas can be made in pleadings
but the effect of substitution of paras 25 and 26 is not
making inconsistent and alternative pleadings but it is
seeking to displace the plaintiff completely from the
admissions made by the defendants in the written. statement.
If such amendments are allowed the plaintiff will be
irretrievably prejudiced by being denied the opportunity of
extracting the admission from the defendants. The High
Court rightly rejected the application for amendment and
agreed with the trial court.
B) The Hon’ble Supreme Court in the case of J. Samuel & Others vs.
Gutto Mahesh and others reported in 2012 2 SCC 300 , at Paragraph Nos.
18, 19 and 20 held as under :-
18. The primary aim of the court is to try the case on its merits
and ensure that the rule of justice prevails. For this the need
is for the true facts of the case to be placed before the court
so that the court has access to all the relevant information
in coming to its decision. Therefore, at times it is required to
permit parties to amend their plaints. The court's
discretion to grant permission for a party to amend his
pleading lies on two conditions, firstly, no injustice must
be done to the other side and secondly, the amendment
must be necessary for the purpose of determining the real
question in controversy between the parties. However, to
balance the interests of the parties in pursuit of doing
justice, the proviso has been added which clearly states
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."
(emphasis supplied)
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19. Due diligence is the idea that reasonable investigation is
necessary before certain kinds of relief are requested. Duly
diligent efforts are a requirement for a party seeking to use
the adjudicatory mechanism to attain an anticipated relief.
An advocate representing someone must engage in due
diligence to determine that the representations made are
factually accurate and sufficient. The term "due diligence"
is specifically used in the Code so as to provide a test for
determining whether to exercise the discretion in situations
of requested amendment after the commencement of trial.
20. A party requesting a relief stemming out of a claim is
required to exercise due diligence and it is a requirement
which cannot be dispensed with. The term "due diligence"
determines the scope of a party's constructive knowledge,
claim and is very critical to the outcome of the suit."
C) The Hon’ble Supreme Court, in the case of Life Insurance
Corporation of India (supra) , has observed at Paragraph Nos. 25 and 71.11
as under :-
25. The principles applicable to the amendments of the plaint
are equally applicable to the amendments of the Written
Statements. The courts are more generous in allowing the
amendment of the Written Statement as question of prejudice
is less likely to operate in that event. The defendant has a
right to take alternative plea in defence which, however, is
subject to an exception that by the proposed amendment
other side should not be subjected to injustice and that any
admission made in favour of the plaintiff is not withdrawn.
All amendments of the pleadings should be allowed which
are necessary for determination of the real controversies in
the suit provided the proposed amendment does not alter or
substitute a new cause of action on the basis of which the
original lis was raised or defence taken) Inconsistent and
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contradictory allegations in negation to the admitted
position of facts or mutually destructive allegations of facts
should not be allowed to be incorporated by means of
amendment to the pleadings. The proposed amendment
should not cause such prejudice to the other side which
cannot be compensated by costs. No amendment should be
allowed which amounts to or relates in defeating a legal
right accruing to the opposite party on account of lapse of
time. The delay in filing the application for amendment of
the pleadings should be properly compensated by costs and
error or mistake which, if not fraudulent, should not be
made a ground for rejecting the application for amendment
of plaint or Written Statement. (See South Konkan
Distilleries v. Prabhakar Gajanan Naik 12.)
71.11. Where the amendment is sought before commencement of
trial, 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 in
amendment. As such, where the amendment does not result
in irreparable prejudice to the opposite party, or divest the
opposite party of an advantage which it had secured as a
result of an admission by the party seeking amendment,
the amendment is required to be allowed. Equally, where
the amendment is necessary for the court to effectively
adjudicate on the main issues in controversy between the
parties, the amendment should be allowed. (See Vijay Gupta
v. Gagninder Kr. Gandhi 40.)
II) The next aspect to be considered is that of due diligence. The facts
stated in the amendment application were purely within the personal
knowledge of the Defendant. The explanation offered by the Defendant is
that the amendment has become necessary in response to the documents
filed by the Plaintiffs. However, the documents relied upon by the Plaintiffs
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pertain to the Defendant’s own affairs and are her own documents, of which
she was admittedly aware. The evidentiary effect of those documents will be
considered by the Trial Court at the appropriate stage, particularly in view of
the two orders passed by the Trial Court concerning the cross-examination of
the witnesses and the admission of the documents. However, once the trial
has commenced, the aspect of due diligence is required to be considered
before permitting an amendment to the pleadings. The question is whether,
despite the exercise of due diligence, the Defendant could not have raised
the matters sought to be introduced by way of amendment before the
commencement of the trial. The Defendant cannot contend that she was
taken by surprise by the documents produced by the Plaintiffs when the facts
sought to be introduced relate to events in her own life and were within her
personal knowledge. These are not subsequent events but facts that had
occurred much prior to the filing of the Written Statement. Thus, the
requirement of due diligence under the proviso of Order VI Rule 17 of the
Code of Civil Procedure, 1908, necessarily comes into play and has to be
considered, as it is a jurisdictional fact that must be established before an
amendment can be permitted after commencement of the trial. In this regard,
reliance can be placed on the following judgments :-
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A) This Court, in the case of Sagar Prabhale & Associates, through its
Partner Sagar Ramchandra Prabhale (supra) , has observed in Paragraph
10 as under :-
10. Relying on judgment of the Apex Court in the Case of
Baldev Singh & Ors. (supra), it is submitted that if the
amendment is necessary for deciding real controversy
between the parties, the Court should be liberal in allowing
such amendment. However, the Apex Court in later
judgment in the case of Vidyabai & Ors. vs. Padmalatha &
Anr. reported in (2009) 2 SCC 409, considered the judgment
in the case of Baldev Singh & Ors. (supra) and has held
that pleading of due diligence in an application for
amendment is jurisdictional fact and unless Court record
such finding of exercise of due diligence court cannot allow
the amendment.
If an amendment is necessary for determining the real controversy between
the parties, the Court should adopt a liberal approach in allowing such
amendment. However, the Hon’ble Supreme Court, in the subsequent
judgment in the case of Vidyabai & Others (supra) , while considering the
judgment in Baldev Singh & Others (supra) , has held that the requirement
of due diligence under the proviso to Order VI Rule 17 of the Code of Civil
Procedure, 1908, is jurisdictional in nature and that, unless the Court records
a finding that the party has exercised due diligence, the amendment cannot
be allowed.
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B) Similarly, the Hon’ble Supreme Court, in the case of Haramani
Sahoo & Ors. (supra) , has held in Paragraph 10 as under :-
10. A plain reading of the aforesaid provision makes it clear that
Order VI Rule 17 of the CPC confers a discretionary power
upon the Court to permit amendments which are necessary
for determining the real questions in controversy between
the parties. However, once the trial has commenced, the
exercise of such power is subject to the additional
requirement that the Court must be satisfied that despite due
diligence, the party could not have raised the matter before
the commencement of trial. The object of the provision is to
enable the Court to effectively and completely adjudicate
upon the dispute between the parties, while at the same
time, ensuring that a party does not introduce at a belated
stage, matters which could, with due diligence, have been
raised earlier.
The Hon’ble Supreme Court has observed that the Court has the
discretionary power to permit amendments where such amendments are
necessary for determining the real question in controversy between the
parties. However, once the trial has commenced, the exercise of such power
is subject to the additional requirement that the Court must be satisfied that,
despite the exercise of due diligence, the party could not have raised the
matter before the commencement of the trial. The object of the provision is
to enable the Court to effectively and completely adjudicate the dispute
between the parties, while, at the same time, ensuring that a party does not
introduce, at a belated stage, matters which could have been raised earlier by
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exercising due diligence.
28. For the aforesaid two reasons, namely, that the proposed amendment
does not satisfy the requirement of due diligence and that it seeks to
withdraw the admission made by the Defendant in her original Written
Statement, the Trial Court ought not to have permitted the Defendant to
amend the pleadings after commencement of the trial. The impugned order
passed by the Trial Court, therefore, suffers from legal infirmities and is
accordingly quashed and set aside. The application for amendment filed at
Exhibit – 35 before the Trial Court is dismissed.
29. The Writ Petition is allowed. Rule made absolute in the above terms.
(ARUN R. PEDNEKER, J.)
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