Amendment of pleadings — Proviso — Due diligence.
Though Order VI Rule 17 CPC permits amendment of pleadings at any stage of proceedings, the proviso mandates that where amendment is sought after commencement of trial, the applicant must establish that despite due diligence, such amendment could not have been sought earlier.
(Paras 4–5)
Amendment after commencement of trial
Wrong legal advice — Not due diligence.
Change of counsel or subsequent advice to seek declaration of title does not constitute “due diligence” within the meaning of the proviso to Order VI Rule 17 CPC.
(Paras 1–4)
Suit for permanent injunction — Amendment to include declaration of title
Belated amendment — Not maintainable.
Where plaintiffs were aware of the alleged title dispute even on the date of filing of the suit and still chose to file a suit for bare injunction, they cannot later seek amendment to incorporate declaration of title after commencement of trial.
(Paras 4–5)
Admissions in cross-examination — Effect
Admissions elicited during cross-examination showing that cause of action pleaded was incorrect disentitle the plaintiff from seeking amendment which would nullify or overcome such admissions.
(Para 4)
Amendment — Prejudice to opposite party
An amendment which would:
• negate admissions already on record, or
• materially prejudice the defence of the opposite party,
is not liable to be allowed.
(Paras 4–5)
Vacant site — Possession follows title
Though possession of a vacant site ordinarily follows title, that principle cannot be invoked to justify a belated amendment when the plaintiff was aware of the dispute at the inception of the suit.
(Para 2)
Declaration of title — Consequential relief
Relief of declaration of title cannot stand alone.
Where removal of structures or other consequential reliefs are necessary, omission to seek such reliefs renders the amendment ineffective and incomplete.
(Para 5)
Identity of property — Distinction from title dispute
Where the core controversy relates to identity of property, mere incorporation of declaration of title does not resolve the dispute.
In such cases, amendment seeking declaration alone is not warranted.
(Para 6)
Multiplicity of proceedings — Limitation
Though avoidance of multiplicity of litigation is a relevant consideration, it cannot override:
• statutory requirement of due diligence, and
• prejudice caused to the opposite party.
(Paras 4–5)
RATIO DECIDENDI
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After commencement of trial, amendment under Order VI Rule 17 CPC is permissible only on strict proof of due diligence.
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Wrong advice of counsel or subsequent legal opinion does not amount to due diligence.
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A plaintiff who consciously files a suit for bare injunction despite an existing dispute of title cannot later amend the plaint to seek declaration.
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Amendment cannot be allowed to nullify admissions already made in evidence.
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Declaration of title without consequential relief is ineffective and cannot be permitted through belated amendment.
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Where the real dispute concerns identity of property, amendment for declaration of title is unnecessary and improper.
