P&H HC Upholds Refusal To Let Plaintiff Turn Injunction Suit Into Possession Case After 12 Post-Remand Chances To Lead Evidence

In brief

The question

Whether the proposed amendment, sought after commencement of trial, satisfied the due-diligence requirement under the proviso to Order VI Rule 17 CPC.

The court held

The Court held that the plaintiff failed to establish due diligence or sufficient justification for the belated amendment, and that the Trial Court committed no illegality or material irregularity in refusing it.

It also directed

The revision petition was dismissed under Article 227. The Court clarified that its observations were confined to the amendment dispute and would not prejudice the merits of the pending suit or other proceedings.

01Facts

The plaintiff’s suit for permanent injunction was dismissed under Order XVII Rule 3 CPC. On appeal, the dismissal was set aside and the suit remanded for fresh adjudication.

¶ 1

After remand, the plaintiff sought to amend his plaint to plead that the defendants had dispossessed him between dismissal of the suit and the appellate order, and to seek possession.

¶ 3–3.1

The Trial Court dismissed the amendment application, citing delay and the plaintiff’s failure to establish due diligence. The plaintiff challenged that order under Article 227 of the Constitution.

¶ 1, 3–3.1

02Issues

i.Whether the proposed amendment, sought after commencement of trial, satisfied the due-diligence requirement under the proviso to Order VI Rule 17 CPC.

¶ 2.2, 3.1–3.3

ii.Whether the amendment could be allowed where it would transform a suit for permanent injunction into a suit for possession.

¶ 3.2

03Law Applied

Order VI Rule 17 CPC permits amendment of pleadings to determine the real questions in controversy, but once trial has commenced, the proviso requires the applicant to satisfy the Court that, despite due diligence, the matter could not have been raised earlier.

¶ 2.2, 3.1–3.2

The Court also exercised its supervisory jurisdiction under Article 227 of the Constitution, finding no basis to interfere absent illegality or material irregularity in the Trial Court’s order.

¶ 3.3

Provisions in the judgment · 1 · Linked ones open on LawLens

Code of Civil Procedure, 1908 Section 151

04Reasoning

The alleged dispossession occurred, according to the plaintiff, during the period when the appeal was pending, but he gave no specific date or period for it and did not explain why he failed to raise it before the First Appellate Court or promptly after remand. Despite twelve opportunities to lead evidence after remand, he proceeded on the existing pleadings and applied to amend only later. The Court held that this unexplained delay did not satisfy due diligence.

¶ 3.1

It further found that adding a claim for possession would materially alter the nature and character of the original injunction suit, particularly given the vague plea of dispossession.

¶ 3.2