1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.19977 OF 2017
(Arising out of SLP (C) No. 26695/2017)
MOHINDER KUMAR MEHRA …APPELLANT
VERSUS
ROOP RANI MEHRA & ORS. …RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
1. This appeal has been filed against the judgment of
Delhi High Court dated 02.08.2017 by which judgment,
the Writ Petition filed by the appellant challenging
the order of Additional District Judge dismissing the
application of the plaintiff under Order VI Rule 17
of the Civil Procedure Code (hereinafter referred to
as “C.P.C.”) has been dismissed. Facts in brief
necessary to be noted for deciding the appeal are:-
The appellant and respondent No.5 are sons of
respondent No.1. Respondent Nos. 2, 3 and 4 are
wife, son and daughter of another brother of
appellant. The appellant’s father Late Shri O.P.
2
Mehra alongwith his wife and three minor sons came to
Delhi from Lahore after Partition. Shri O.P. Mehra
died in 1951. The respondent No.1 and her sons were
held entitled to compensation under Order of
Settlement Commissioner, New Delhi dated 14.08.1956.
The respondent No. 1 was declared as highest bidder
in a public auction for a House No. D-4, Lajpat
Nagar, area measuring 300 sq. yds. which amount was
adjusted from the claim to which the respondent No.1
and her sons were held entitled.
Another property was also allotted in the name of
respondent No.1 of area measuring 200 sq. yds. at
G-11, Nizamuddin, New Delhi. The property G-11,
Nizamuddin was sold by respondent No.1 in the year
2000. On 04.11.2009, the appellant filed a Suit No.
2082 of 2009 against the respondents seeking
partition of the suit property described in Appendix
A. In Appendix A, only property mentioned was Plot
No.D-4, Lajpat Nagar, Part-II, New Delhi.
Written statement was filed by the respondent and
on 17.05.2010, issues were framed by the Court.
10.08.2010 was fixed for recording the evidence of
the plaintiff. The plaintiff prayed for time for
3
producing evidence. On 17.01.2011, plaintiff filed an
application under Order VI Rule 17 praying for
amendment of the plaint. By the application
plaintiff sought to add certain pleadings and a
prayer claiming share in the sale proceeds received
by defendant No.1 from sale of the property of
Nizamuddin. Application filed by the plaintiff was
objected by the defendants by filing a reply. It was
pleaded that several opportunities were given to the
plaintiff to lead evidence and last opportunity was
given on 08.12.2010 to file his evidence by
28.01.2011. It was further pleaded that in the sale
document of Nizamuddin property, plaintiff himself
was a witness. The relief which is sought to be
amended is barred by time and is altogether a
separate cause of action. Plaintiff filed a rejoinder
in which it was stated that plaintiff came to know
that plaintiff had undivided share in the property at
Nizamuddin only in November, 2010. He further stated
that he informed all the facts to his earlier counsel
but in the plaint the mention of Nizamuddin property
was not made by earlier counsel and while preparing
for evidence in the suit, the fact was noticed by the
4
plaintiff only in November, 2010 and hence
application for amendment has been filed. The Court
passed on order on 26.07.2011 granting the plaintiff
four week’s time as a last opportunity to file the
examination-in-chief of his witnesses subject to
payment of Rs.5,000/-, with regard to I.A. No.1001 of
2011, it was stated “Needless to say in Case I.A.
No.1001/2011 is allowed, appropriate orders for
evidence of the plaintiff would be made.” Parties led
evidence and suit was fixed for final disposal. On
14.02.2014, an order was passed directing that
amendment application shall be considered at the time
of final hearing of the suit. Plaintiff filed an
application for amendment of issues, which was
rejected by the High Court on 09.02.2015. The
plaintiff filed a FAO (OS) No.196 of 2015, in which
Division Bench of the High Court by order dated
28.04.2015 directed the learned Single Judge to
decide the amendment application I.A. No. 1001 of
2011. In the meantime on account of pecuniary
jurisdiction of the case, the suit was transferred to
the Court of Additional District Judge, Saket. The
Additional District Judge took up the amendment
5
application and vide order dated 24.10.2016 rejected
the amendment application. The trial court took the
view that the suit for recovery of money of his share
could have been filed by plaintiff within three years
from the date of sale. The trial court held that the
amendment sought is barred by time, hence the
application was rejected.
A Writ Petition under Article 227 was filed by
the plaintiff in the High Court challenging the order
dated 24.10.2016, which has been dismissed by the
High Court by the impugned judgment, against which
this appeal has been filed.
2. We have heard Ms. Shobha, learned counsel for the
appellant. Shri S.B. Upadhyay, learned counsel was
heard for respondent No.1, Shri Rana S. Biswas and
Ms. Sharmila Upadhyay, has been heard for respondent
No.5. Learned counsel for respondent No.5 having
adopted the submissions raised on behalf of
respondent No.1, we shall hereinafter refer to the
submissions of respondent No.1 and respondent No.5 as
submissions on behalf of respondents.
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3. Learned counsel for the appellant in support of the
appeal contends that the application filed by the
plaintiff for amendment under Order VI Rule 17 was
not barred by time. Relying on Article 110 of the
Limitation Act, 1963, learned counsel submits that
the limitation for enforcing a right to share in a
joint family property is twelve years, hence the
claim was not barred by time. The High Court on one
hand refrained itself from saying anything on the
issue of limitation on Article 110 of the Limitation
Act and on the other hand has given an approval to
the view of the learned Additional District Judge
that suit is barred by time. The High Court has
failed to appreciate that parties have already led
evidence relating to proposed amendment which fact
was recorded by the High Court on 14.02.2014 and only
a formal order of allowing amendment was required,
which would not have caused any prejudice to the
defendant. The High Court on technical grounds has
rejected the amendment application whereas it is well
settled that amendment applications are to be
liberally considered and unless any prejudice is
shown to be caused to the defendant, the applications
7
are allowed.
4. Learned counsel for the respondent refuting the
submission of the appellant contends that amendment
application filed by the appellant could not have
been allowed in view of Proviso to Order VI Rule 17
C.P.C. It is submitted that trial in the suit has
already commenced and plaintiff failed to show that
in spite of due diligence, he could not raise the
matter earlier, hence the trial court has rightly
rejected the amendment application. It is further
stated that claim was barred by time. The amendment
sought to be made related to claim for recovery of
money for which limitation is only three years, as
has been rightly held by the trial court. There is no
substance in the case of the plaintiff that due to
mistake of earlier counsel, the Nizamuddin property
could not be included in the plaint. Plaintiff
himself has verified the plaint and cannot be allowed
to take any such plea. The Proviso to Order VI Rule
17 does not permit any such amendment as now prayed
by plaintiff. It is submitted that there was no due
diligence at all on the part of the
appellant-plaintiff so as to enable the Court to
8
allow the amendment exercising the power reserved to
the Court under Proviso. The appellant in his
repllication has stated that Lajpat Nagar property
was the one and the only joint family property. By
allowing the amendment, the very nature of the suit
shall be changed, causing great prejudice to
respondent No.1. Learned counsel for the respondents
have also raised submissions regarding the merits of
the claim of the plaintiff.
5. We have considered the submissions of the learned
counsel for the parties and have perused the records.
6. Order VI Rule 17 of C.P.C. as it now exists is as
follows:-
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.
7. By Amendment Act 46 of 1999 with a view to shortage
9
litigation and speed of the trial of the civil suits,
Rule 17 of Order VI was omitted, which provision was
restored by Amendment Act 22 of 2002 with a rider in
the shape of the proviso limiting the power of
amendment to a considerable extent. The object of
newly inserted Rule 17 is to control filing of
application for amending the pleading subsequent to
commencement of trial. Not permitting amendment
subsequent to commencement of the trial is with the
object that when evidence is led on pleadings in a
case, no new case be allowed to set up by amendments.
The proviso, however, contains an exception by
reserving right of the Court to grant amendment even
after commencement of the trial, when it is shown
that in spite of diligence, the said pleas could not
be taken earlier. The object for adding proviso is
to curtail delay and expedite adjudication of the
cases. This Court in Salem Advocate Bar
Association, T.N. Vs. Union of India, (2005) 6 SCC
344 has noted the object of Rule 17 in Para 26 which
is to the following effect:
“26. Order 6 Rule 17 of the Code deals with
amendment of pleadings. By Amendment Act 46 of
1999, this provision was deleted. It has again
10
been restored by Amendment Act 22 of 2002 but
with an added proviso to prevent application
for amendment being 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, to
some extent, curtails absolute discretion to
allow amendment at any stage. Now, if application
is filed after commencement of trial, it
has to be shown that in spite of due diligence,
such amendment could not have been
sought earlier. The object is to prevent frivolous
applications which are filed to delay
the trial. There is no illegality in the provision.”
8. The judgment on which much reliance has been placed
by learned counsel for the appellant is Rajesh Kumar
Aggarwal & Ors. Vs. K.K. Modi & Ors. (2006) 4 SCC
385. This Court had occasion to consider and
interpret Order VI Rule 17 in Paragraphs 15 and 16,
in which following has been held:-
“15. The object of the rule is that the courts
should try the merits of the case that come
before them and should, consequently, allow
all amendments that may be necessary for determining
the real question in controversy between
the parties provided it does not cause
injustice or prejudice to the other side.
16. Order 6 Rule 17 consists of two parts.
Whereas the first part is discretionary (may)
and leaves it to the court to order amendment
of pleading. The second part is imperative
(shall) and enjoins the court to allow all
amendments which are necessary for the purpose
11
of determining the real question in controversy
between the parties.”
9. Although Order VI Rule 17 permits amendment in the
pleadings “at any stage of the proceedings”, but a
limitation has been engrafted by means of Proviso to
the fact that no application for amendment shall be
allowed after the trial is commenced. Reserving the
Court’s jurisdiction to order for permitting the
party to amend pleading on being satisfied that in
spite of due diligence the parties could not have
raised the matter before the commencement of trial.
In a suit when trial commences? Order XVIII of the
C.P.C. deal with “Hearing of the Suit and Examination
of Witnesses”. Issues are framed under Order XIV. At
the first hearing of the suit, the Court after
reading the plaint and written statement and after
examination under Rule 1 of Order XIV is to frame
issues. Order XV deals with “Disposal of the Suit at
the first hearing”, when it appears that the parties
are not in issue of any question of law or a fact.
After issues are framed and case is fixed for hearing
and the party having right to begin is to produce his
evidence, the trial of suit commences. This Court in
12
Vidyabai & Ors. Vs. Padmalatha & Anr., (2009) 2 SCC
409 held that filing of an affidavit in lieu of
examination-in-chief of the witnesses amounts to
commencement of proceedings. In Paragraph 11 of the
judgment, following has been held:-
“11. From the order passed by the learned
trial Judge, it is evident that the respondents
had not been able to fulfil the said
precondition. The question, therefore, which
arises for consideration is as to whether the
trial had commenced or not. In our opinion, it
did. The date on which the issues are framed
is the date of first hearing. Provisions of
the Code of Civil Procedure envisage taking of
various steps at different stages of the proceeding.
Filing of an affidavit in lieu of examination-in-chief
of the witness, in our
opinion, would amount to “commencement of proceeding”.”
10.Coming to the facts of the present case, it is clear
from the record that issues were framed on 17.05.2010
and case was fixed for recording of evidence of
plaintiff on 10.08.2010. Plaintiff did not produce
the evidence and took adjournment and in the meantime
filed an application under Order VI Rule 16 or 17 on
17.01.2011. Thereafter the Court on 26.07.2011 has
granted four week’s time as the last opportunity to
file the examination-in-chief. It is useful to quote
Paragraph 4 of the Order, which is to the following
13
effect:-
4. In view of the above, it is directed as
follows:-
(i) Having regard to the delay which has
ensued, subject to the plaintiff paying
costs of Rs.5,000/- each to the
contesting defendant No.1 and 5 within a
period of one week, the plaintiff is
permitted four weeks time as a last
opportunity to file the
examination-in-chief of his witnesses on
affidavit.
(ii) The matter shall be listed before the
Joint Registrar for recording of
plaintiffs evidence on 29th August, 2011.
(iii) The case shall be listed before court
for direction on 18th January, 2012.
(iv) Needless to say in case IA No. 1001/2011
is allowed, appropriate orders for
evidence of the plaintiff would be
made.”
11.Thus technically trial commenced when the date was
fixed for leading evidence by the plaintiff but
actually the amendment application was filed before
the evidence was led by the plaintiff. The parties
led evidence after the amendment application was
filed. In this context, it is necessary to notice the
order of the High Court dated 14.02.2014, which
records that evidence of both the parties have been
concluded. Most important fact to be noticed in the
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order is that the Court recorded the statement of
plaintiff’s counsel that parties have led evidence in
view of the amendment sought in the plaint. Order
dated 14.02.2014 is to the following effect:-
“The evidence of both the parties has been
concluded. The matter has been listed for
final disposal. Learned counsel for the
plaintiff has pointed out the order dated 26th
July, 2011 wherein observation was made that
in case I.A. No. 1001/2011 under Order VI Rule
17 CPC for amendment of the plaint is allowed,
appropriate order for evidence of the
plaintiff would be made. As a matter of fact,
plaintiffs counsel stated that the parties
have also led evidence in view of amendment
sought in the plaint and the same covered in
the evidence produced by the parties. The
defendants, however, alleged that the said
amendment was unnecessary and was opposed by
the defendants and issue involved in the said
circumstances be considered at the time of
final hearing of suit as defendant No.1 is
more than 85 years old lady, the suit itself
be decided.
List this matter in the category of Short
cause on 22 May, 2014……”
12.By same order dated 14.02.2014, the Court directed
amendment application be taken at the time of final
hearing. As noticed above, when plaintiff sought for
framing additional issues which application was
rejected, the matter was taken before the Division
Bench and the Division Bench ultimately has directed
15
the learned Single Judge to consider the amendment
application. Subsequently, the amendment application
was rejected on 24.10.2016.
13.The Proviso to Order VI Rule 17 prohibited
entertainment of amendment application after
commencement of the trial with the object and purpose
that once parties proceed with the leading of
evidence, no new pleading be permitted to be
introduced. The present is a case where actually
before parties could led evidence, the amendment
application has been filed and from the order dated
14.02.2014, it is clear that the plaintiff’s case is
that parties has led evidence even on the amended
pleadings and plaintiff’s cases was that in view of
the fact that the parties led evidence on amended
pleadings, the allowing the amendment was mere
formality. The defendant in no manner can be said to
be prejudiced by the amendments since plaintiff led
his evidence on amended pleadings also as claimed by
him.
14.This Court in Chander Kanta Bansal Vs. Rajinder
16
Singh Anand, (2008) 5 SCC 117 has noted the object
and purpose of amendment made in 2002. In Para 13,
following has been held:-
“13. The entire object of the said amendment
is to stall filing of applications for amending
a pleading subsequent to the commencement
of trial, to avoid surprises and the parties
had sufficient knowledge of the other’s case.
It also helps in checking the delays in filing
the applications. Once, the trial commences on
the known pleas, it will be very difficult for
any side to reconcile. In spite of the same,
an exception is made in the newly inserted
proviso where it is shown that in spite of due
diligence, he could not raise a plea, it is
for the court to consider the same. Therefore,
it is not a complete bar nor shuts out entertaining
of any later application. As stated
earlier, the reason for adding proviso is to
curtail delay and expedite hearing of cases.”
15.Looking to the object and purpose by which limitation
was put on permitting amendment of the pleadings, in
substance, in the present case no prejudice can be
said to have caused to the defendant since the
evidence was led subsequent to the filing of the
amendment application. We thus are of the view that
looking to the purpose and object of the Proviso,
present was a case where it cannot be held that
amendment application filed by the plaintiff could
not be considered due to bar of the Proviso.
17
16.Now, we come to the one of the main reason given by
the trial court in rejecting the application that the
claim was barred by limitation. The Nizamuddin
property, which property was sought to be added in
the suit for partition was a property, which was sold
by respondent No.1 in the year 2000, in which the
plaintiff was also one of the witnesses. The trial
court took the view that the suit was simplicitor for
recovery of money for which limitation is only three
years from the date of sale and not twelve years as
claimed by the applicant. With regard to the
limitation, the plaintiff-appellant relies on Article
110 of the Limitation Act, which is to the following
effect:-
Article
No.
Description of
Suitt
Period of
Limitation
Time from
which
period
begins to
run
110 By a person
excluded from a
joint family
property to
enforce a right
to share therein.
Twelve
Years
When the
exclusion
becomes
known to
the
plaintiff
17.Present is not a case of simply recovery of money.
Plaintiff’s claim is to enforce a right to share in
18
the Nizamuddin property, which was sold in the year
2000 and according to plaintiff, the limitation is
twelve years as per Article 110. The High Court has
also noted the order of Additional District Judge
holding that claim is barred by time. The High Court
refrained from expressing any final opinion on the
question of limitation but observed that the view
taken by the Additional District Judge is correct.
It is relevant to refer to Para 28 of the judgment,
which is to the following effect:-
“The learned Additional District Judge in the
impugned order has also accepted the
contention of the counsel for the
respondents/defendants of the relief sought to
be added by way of amendment being barred by
time and Articles 106 and 110 of the Schedule
to the Limitation Act being not applicable.
The counsel for the petitioner/plaintiff has
been unable to show any precedent that a claim
for a definite share in the sale proceeds of,
a property would be governed by Articles 106
and Article 110 supra. However, the same
being in the nature of entering into the
merits of the amendment, I refrain from
dealing with the said aspect, though the view
taken by the learned Additional District Judge
appears to be reasonable and plausible.”
18.In the facts of the present case, final determination
as to whether the claim could be held to be barred by
time could have been decided only after considering
19
the evidence led by the parties. Whether plaintiff
had any share in the property, which was sold in the
year 2000 and what was the nature of his share and
whether he can claim recovery of his share within
twelve years were all the questions on which final
adjudication could have been made after considering
the evidence and at the stage of considering the
amendment in the facts of the present case, it was
too early to come to a conclusion that limitation was
only three years and not twelve years as claimed by
the plaintiff. The High Court on the one hand
refrained from expressing any opinion and on the
other hand has expressed his agreement with the view
taken by the Additional District Judge rejecting the
application as barred by time.
19.While considering the prayer of amendment of the
pleadings by a party, this Court in the case of
Mahila Ramkali Devi & Ors. Vs. Nandram (Dead)
through Legal Representatives & Ors., (2015) 13 SCC
132 has again reiterated the basic principles, which
are to be kept in mind while considering such
applications in Paragrpahs 20, 21 and 22, which is
20
quoted as below:-
“20. It is well settled that rules of procedure
are intended to be a handmaid to the administration
of justice. A party cannot be refused
just relief merely because of some mistake,
negligence, inadvertence or even infraction
of rules of procedure. The court always
gives relief to amend the pleading of the
party, unless it is satisfied that the party
applying was acting mala fide or that by his
blunder he had caused injury to his opponent
which cannot be compensated for by an order of
cost.
21. In our view, since the appellant sought
amendment in Para 3 of the original plaint,
the High Court ought not to have rejected the
application.
22. In Jai Jai Ram Manohar Lal v. National
Building Material Supply3, this Court held
that the power to grant amendment to pleadings
is intended to serve the needs of justice and
is not governed by any such narrow or technical
limitations.”
20.Although, learned counsel for the parties in their
submissions have raised various submissions on the
merits of the claim of the parties, which need no
consideration by us since the only issue which has to
be considered is as to whether the amendment
application filed by the plaintiff deserves to be
allowed or not. We make it clear that we have neither
entered into merits of the claim nor have expressed
21
any opinion on the merits of the claim of either
party and it is for the trial court to consider the
issues on merits while deciding the suit.
21.Taking into overall consideration of the facts of the
present case and specially the fact that evidence by
the parties was led after the filing of the amendment
application, we are of the view that justice could
have been served in allowing the amendment
application. We thus allow the appeal and set aside
the order of the High Court as well as the order of
the Additional District Judge. The amendment
application I.A. No. 1001 of 2011 stand allowed.
Both the parties have led their evidences and case
has already been fixed for hearing, however, to avoid
any prejudice to the parties, justice will be served
in giving a limited opportunity to the parties to
lead additional evidence, if they so desire.
22.We thus direct that the parties may file this order
before the trial court within two weeks from today,
on receipt of the order, the trial court shall
consider on framing of additional issue, if necessary
22
and shall thereafter grant opportunity to the parties
to lead additional evidence, if any. The entire
exercise shall be completed within three months and
thereafter suit be decided finally. The parties
shall bear their own costs. We make it clear that we
have not expressed any opinion on merits of the case
including on the question of applicability of Article
110 of the Limitation Act and all the issues shall be
decided on the basis of materials on record without
being influenced by any observation made by us.
..........................J.
( A.K. SIKRI )
..........................J.
NEW DELHI, ( ASHOK BHUSHAN )
DECEMBER 11, 2017.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.19977 OF 2017
(Arising out of SLP (C) No. 26695/2017)
MOHINDER KUMAR MEHRA …APPELLANT
VERSUS
ROOP RANI MEHRA & ORS. …RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
1. This appeal has been filed against the judgment of
Delhi High Court dated 02.08.2017 by which judgment,
the Writ Petition filed by the appellant challenging
the order of Additional District Judge dismissing the
application of the plaintiff under Order VI Rule 17
of the Civil Procedure Code (hereinafter referred to
as “C.P.C.”) has been dismissed. Facts in brief
necessary to be noted for deciding the appeal are:-
The appellant and respondent No.5 are sons of
respondent No.1. Respondent Nos. 2, 3 and 4 are
wife, son and daughter of another brother of
appellant. The appellant’s father Late Shri O.P.
2
Mehra alongwith his wife and three minor sons came to
Delhi from Lahore after Partition. Shri O.P. Mehra
died in 1951. The respondent No.1 and her sons were
held entitled to compensation under Order of
Settlement Commissioner, New Delhi dated 14.08.1956.
The respondent No. 1 was declared as highest bidder
in a public auction for a House No. D-4, Lajpat
Nagar, area measuring 300 sq. yds. which amount was
adjusted from the claim to which the respondent No.1
and her sons were held entitled.
Another property was also allotted in the name of
respondent No.1 of area measuring 200 sq. yds. at
G-11, Nizamuddin, New Delhi. The property G-11,
Nizamuddin was sold by respondent No.1 in the year
2000. On 04.11.2009, the appellant filed a Suit No.
2082 of 2009 against the respondents seeking
partition of the suit property described in Appendix
A. In Appendix A, only property mentioned was Plot
No.D-4, Lajpat Nagar, Part-II, New Delhi.
Written statement was filed by the respondent and
on 17.05.2010, issues were framed by the Court.
10.08.2010 was fixed for recording the evidence of
the plaintiff. The plaintiff prayed for time for
3
producing evidence. On 17.01.2011, plaintiff filed an
application under Order VI Rule 17 praying for
amendment of the plaint. By the application
plaintiff sought to add certain pleadings and a
prayer claiming share in the sale proceeds received
by defendant No.1 from sale of the property of
Nizamuddin. Application filed by the plaintiff was
objected by the defendants by filing a reply. It was
pleaded that several opportunities were given to the
plaintiff to lead evidence and last opportunity was
given on 08.12.2010 to file his evidence by
28.01.2011. It was further pleaded that in the sale
document of Nizamuddin property, plaintiff himself
was a witness. The relief which is sought to be
amended is barred by time and is altogether a
separate cause of action. Plaintiff filed a rejoinder
in which it was stated that plaintiff came to know
that plaintiff had undivided share in the property at
Nizamuddin only in November, 2010. He further stated
that he informed all the facts to his earlier counsel
but in the plaint the mention of Nizamuddin property
was not made by earlier counsel and while preparing
for evidence in the suit, the fact was noticed by the
4
plaintiff only in November, 2010 and hence
application for amendment has been filed. The Court
passed on order on 26.07.2011 granting the plaintiff
four week’s time as a last opportunity to file the
examination-in-chief of his witnesses subject to
payment of Rs.5,000/-, with regard to I.A. No.1001 of
2011, it was stated “Needless to say in Case I.A.
No.1001/2011 is allowed, appropriate orders for
evidence of the plaintiff would be made.” Parties led
evidence and suit was fixed for final disposal. On
14.02.2014, an order was passed directing that
amendment application shall be considered at the time
of final hearing of the suit. Plaintiff filed an
application for amendment of issues, which was
rejected by the High Court on 09.02.2015. The
plaintiff filed a FAO (OS) No.196 of 2015, in which
Division Bench of the High Court by order dated
28.04.2015 directed the learned Single Judge to
decide the amendment application I.A. No. 1001 of
2011. In the meantime on account of pecuniary
jurisdiction of the case, the suit was transferred to
the Court of Additional District Judge, Saket. The
Additional District Judge took up the amendment
5
application and vide order dated 24.10.2016 rejected
the amendment application. The trial court took the
view that the suit for recovery of money of his share
could have been filed by plaintiff within three years
from the date of sale. The trial court held that the
amendment sought is barred by time, hence the
application was rejected.
A Writ Petition under Article 227 was filed by
the plaintiff in the High Court challenging the order
dated 24.10.2016, which has been dismissed by the
High Court by the impugned judgment, against which
this appeal has been filed.
2. We have heard Ms. Shobha, learned counsel for the
appellant. Shri S.B. Upadhyay, learned counsel was
heard for respondent No.1, Shri Rana S. Biswas and
Ms. Sharmila Upadhyay, has been heard for respondent
No.5. Learned counsel for respondent No.5 having
adopted the submissions raised on behalf of
respondent No.1, we shall hereinafter refer to the
submissions of respondent No.1 and respondent No.5 as
submissions on behalf of respondents.
6
3. Learned counsel for the appellant in support of the
appeal contends that the application filed by the
plaintiff for amendment under Order VI Rule 17 was
not barred by time. Relying on Article 110 of the
Limitation Act, 1963, learned counsel submits that
the limitation for enforcing a right to share in a
joint family property is twelve years, hence the
claim was not barred by time. The High Court on one
hand refrained itself from saying anything on the
issue of limitation on Article 110 of the Limitation
Act and on the other hand has given an approval to
the view of the learned Additional District Judge
that suit is barred by time. The High Court has
failed to appreciate that parties have already led
evidence relating to proposed amendment which fact
was recorded by the High Court on 14.02.2014 and only
a formal order of allowing amendment was required,
which would not have caused any prejudice to the
defendant. The High Court on technical grounds has
rejected the amendment application whereas it is well
settled that amendment applications are to be
liberally considered and unless any prejudice is
shown to be caused to the defendant, the applications
7
are allowed.
4. Learned counsel for the respondent refuting the
submission of the appellant contends that amendment
application filed by the appellant could not have
been allowed in view of Proviso to Order VI Rule 17
C.P.C. It is submitted that trial in the suit has
already commenced and plaintiff failed to show that
in spite of due diligence, he could not raise the
matter earlier, hence the trial court has rightly
rejected the amendment application. It is further
stated that claim was barred by time. The amendment
sought to be made related to claim for recovery of
money for which limitation is only three years, as
has been rightly held by the trial court. There is no
substance in the case of the plaintiff that due to
mistake of earlier counsel, the Nizamuddin property
could not be included in the plaint. Plaintiff
himself has verified the plaint and cannot be allowed
to take any such plea. The Proviso to Order VI Rule
17 does not permit any such amendment as now prayed
by plaintiff. It is submitted that there was no due
diligence at all on the part of the
appellant-plaintiff so as to enable the Court to
8
allow the amendment exercising the power reserved to
the Court under Proviso. The appellant in his
repllication has stated that Lajpat Nagar property
was the one and the only joint family property. By
allowing the amendment, the very nature of the suit
shall be changed, causing great prejudice to
respondent No.1. Learned counsel for the respondents
have also raised submissions regarding the merits of
the claim of the plaintiff.
5. We have considered the submissions of the learned
counsel for the parties and have perused the records.
6. Order VI Rule 17 of C.P.C. as it now exists is as
follows:-
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.
7. By Amendment Act 46 of 1999 with a view to shortage
9
litigation and speed of the trial of the civil suits,
Rule 17 of Order VI was omitted, which provision was
restored by Amendment Act 22 of 2002 with a rider in
the shape of the proviso limiting the power of
amendment to a considerable extent. The object of
newly inserted Rule 17 is to control filing of
application for amending the pleading subsequent to
commencement of trial. Not permitting amendment
subsequent to commencement of the trial is with the
object that when evidence is led on pleadings in a
case, no new case be allowed to set up by amendments.
The proviso, however, contains an exception by
reserving right of the Court to grant amendment even
after commencement of the trial, when it is shown
that in spite of diligence, the said pleas could not
be taken earlier. The object for adding proviso is
to curtail delay and expedite adjudication of the
cases. This Court in Salem Advocate Bar
Association, T.N. Vs. Union of India, (2005) 6 SCC
344 has noted the object of Rule 17 in Para 26 which
is to the following effect:
“26. Order 6 Rule 17 of the Code deals with
amendment of pleadings. By Amendment Act 46 of
1999, this provision was deleted. It has again
10
been restored by Amendment Act 22 of 2002 but
with an added proviso to prevent application
for amendment being 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, to
some extent, curtails absolute discretion to
allow amendment at any stage. Now, if application
is filed after commencement of trial, it
has to be shown that in spite of due diligence,
such amendment could not have been
sought earlier. The object is to prevent frivolous
applications which are filed to delay
the trial. There is no illegality in the provision.”
8. The judgment on which much reliance has been placed
by learned counsel for the appellant is Rajesh Kumar
Aggarwal & Ors. Vs. K.K. Modi & Ors. (2006) 4 SCC
385. This Court had occasion to consider and
interpret Order VI Rule 17 in Paragraphs 15 and 16,
in which following has been held:-
“15. The object of the rule is that the courts
should try the merits of the case that come
before them and should, consequently, allow
all amendments that may be necessary for determining
the real question in controversy between
the parties provided it does not cause
injustice or prejudice to the other side.
16. Order 6 Rule 17 consists of two parts.
Whereas the first part is discretionary (may)
and leaves it to the court to order amendment
of pleading. The second part is imperative
(shall) and enjoins the court to allow all
amendments which are necessary for the purpose
11
of determining the real question in controversy
between the parties.”
9. Although Order VI Rule 17 permits amendment in the
pleadings “at any stage of the proceedings”, but a
limitation has been engrafted by means of Proviso to
the fact that no application for amendment shall be
allowed after the trial is commenced. Reserving the
Court’s jurisdiction to order for permitting the
party to amend pleading on being satisfied that in
spite of due diligence the parties could not have
raised the matter before the commencement of trial.
In a suit when trial commences? Order XVIII of the
C.P.C. deal with “Hearing of the Suit and Examination
of Witnesses”. Issues are framed under Order XIV. At
the first hearing of the suit, the Court after
reading the plaint and written statement and after
examination under Rule 1 of Order XIV is to frame
issues. Order XV deals with “Disposal of the Suit at
the first hearing”, when it appears that the parties
are not in issue of any question of law or a fact.
After issues are framed and case is fixed for hearing
and the party having right to begin is to produce his
evidence, the trial of suit commences. This Court in
12
Vidyabai & Ors. Vs. Padmalatha & Anr., (2009) 2 SCC
409 held that filing of an affidavit in lieu of
examination-in-chief of the witnesses amounts to
commencement of proceedings. In Paragraph 11 of the
judgment, following has been held:-
“11. From the order passed by the learned
trial Judge, it is evident that the respondents
had not been able to fulfil the said
precondition. The question, therefore, which
arises for consideration is as to whether the
trial had commenced or not. In our opinion, it
did. The date on which the issues are framed
is the date of first hearing. Provisions of
the Code of Civil Procedure envisage taking of
various steps at different stages of the proceeding.
Filing of an affidavit in lieu of examination-in-chief
of the witness, in our
opinion, would amount to “commencement of proceeding”.”
10.Coming to the facts of the present case, it is clear
from the record that issues were framed on 17.05.2010
and case was fixed for recording of evidence of
plaintiff on 10.08.2010. Plaintiff did not produce
the evidence and took adjournment and in the meantime
filed an application under Order VI Rule 16 or 17 on
17.01.2011. Thereafter the Court on 26.07.2011 has
granted four week’s time as the last opportunity to
file the examination-in-chief. It is useful to quote
Paragraph 4 of the Order, which is to the following
13
effect:-
4. In view of the above, it is directed as
follows:-
(i) Having regard to the delay which has
ensued, subject to the plaintiff paying
costs of Rs.5,000/- each to the
contesting defendant No.1 and 5 within a
period of one week, the plaintiff is
permitted four weeks time as a last
opportunity to file the
examination-in-chief of his witnesses on
affidavit.
(ii) The matter shall be listed before the
Joint Registrar for recording of
plaintiffs evidence on 29th August, 2011.
(iii) The case shall be listed before court
for direction on 18th January, 2012.
(iv) Needless to say in case IA No. 1001/2011
is allowed, appropriate orders for
evidence of the plaintiff would be
made.”
11.Thus technically trial commenced when the date was
fixed for leading evidence by the plaintiff but
actually the amendment application was filed before
the evidence was led by the plaintiff. The parties
led evidence after the amendment application was
filed. In this context, it is necessary to notice the
order of the High Court dated 14.02.2014, which
records that evidence of both the parties have been
concluded. Most important fact to be noticed in the
14
order is that the Court recorded the statement of
plaintiff’s counsel that parties have led evidence in
view of the amendment sought in the plaint. Order
dated 14.02.2014 is to the following effect:-
“The evidence of both the parties has been
concluded. The matter has been listed for
final disposal. Learned counsel for the
plaintiff has pointed out the order dated 26th
July, 2011 wherein observation was made that
in case I.A. No. 1001/2011 under Order VI Rule
17 CPC for amendment of the plaint is allowed,
appropriate order for evidence of the
plaintiff would be made. As a matter of fact,
plaintiffs counsel stated that the parties
have also led evidence in view of amendment
sought in the plaint and the same covered in
the evidence produced by the parties. The
defendants, however, alleged that the said
amendment was unnecessary and was opposed by
the defendants and issue involved in the said
circumstances be considered at the time of
final hearing of suit as defendant No.1 is
more than 85 years old lady, the suit itself
be decided.
List this matter in the category of Short
cause on 22 May, 2014……”
12.By same order dated 14.02.2014, the Court directed
amendment application be taken at the time of final
hearing. As noticed above, when plaintiff sought for
framing additional issues which application was
rejected, the matter was taken before the Division
Bench and the Division Bench ultimately has directed
15
the learned Single Judge to consider the amendment
application. Subsequently, the amendment application
was rejected on 24.10.2016.
13.The Proviso to Order VI Rule 17 prohibited
entertainment of amendment application after
commencement of the trial with the object and purpose
that once parties proceed with the leading of
evidence, no new pleading be permitted to be
introduced. The present is a case where actually
before parties could led evidence, the amendment
application has been filed and from the order dated
14.02.2014, it is clear that the plaintiff’s case is
that parties has led evidence even on the amended
pleadings and plaintiff’s cases was that in view of
the fact that the parties led evidence on amended
pleadings, the allowing the amendment was mere
formality. The defendant in no manner can be said to
be prejudiced by the amendments since plaintiff led
his evidence on amended pleadings also as claimed by
him.
14.This Court in Chander Kanta Bansal Vs. Rajinder
16
Singh Anand, (2008) 5 SCC 117 has noted the object
and purpose of amendment made in 2002. In Para 13,
following has been held:-
“13. The entire object of the said amendment
is to stall filing of applications for amending
a pleading subsequent to the commencement
of trial, to avoid surprises and the parties
had sufficient knowledge of the other’s case.
It also helps in checking the delays in filing
the applications. Once, the trial commences on
the known pleas, it will be very difficult for
any side to reconcile. In spite of the same,
an exception is made in the newly inserted
proviso where it is shown that in spite of due
diligence, he could not raise a plea, it is
for the court to consider the same. Therefore,
it is not a complete bar nor shuts out entertaining
of any later application. As stated
earlier, the reason for adding proviso is to
curtail delay and expedite hearing of cases.”
15.Looking to the object and purpose by which limitation
was put on permitting amendment of the pleadings, in
substance, in the present case no prejudice can be
said to have caused to the defendant since the
evidence was led subsequent to the filing of the
amendment application. We thus are of the view that
looking to the purpose and object of the Proviso,
present was a case where it cannot be held that
amendment application filed by the plaintiff could
not be considered due to bar of the Proviso.
17
16.Now, we come to the one of the main reason given by
the trial court in rejecting the application that the
claim was barred by limitation. The Nizamuddin
property, which property was sought to be added in
the suit for partition was a property, which was sold
by respondent No.1 in the year 2000, in which the
plaintiff was also one of the witnesses. The trial
court took the view that the suit was simplicitor for
recovery of money for which limitation is only three
years from the date of sale and not twelve years as
claimed by the applicant. With regard to the
limitation, the plaintiff-appellant relies on Article
110 of the Limitation Act, which is to the following
effect:-
Article
No.
Description of
Suitt
Period of
Limitation
Time from
which
period
begins to
run
110 By a person
excluded from a
joint family
property to
enforce a right
to share therein.
Twelve
Years
When the
exclusion
becomes
known to
the
plaintiff
17.Present is not a case of simply recovery of money.
Plaintiff’s claim is to enforce a right to share in
18
the Nizamuddin property, which was sold in the year
2000 and according to plaintiff, the limitation is
twelve years as per Article 110. The High Court has
also noted the order of Additional District Judge
holding that claim is barred by time. The High Court
refrained from expressing any final opinion on the
question of limitation but observed that the view
taken by the Additional District Judge is correct.
It is relevant to refer to Para 28 of the judgment,
which is to the following effect:-
“The learned Additional District Judge in the
impugned order has also accepted the
contention of the counsel for the
respondents/defendants of the relief sought to
be added by way of amendment being barred by
time and Articles 106 and 110 of the Schedule
to the Limitation Act being not applicable.
The counsel for the petitioner/plaintiff has
been unable to show any precedent that a claim
for a definite share in the sale proceeds of,
a property would be governed by Articles 106
and Article 110 supra. However, the same
being in the nature of entering into the
merits of the amendment, I refrain from
dealing with the said aspect, though the view
taken by the learned Additional District Judge
appears to be reasonable and plausible.”
18.In the facts of the present case, final determination
as to whether the claim could be held to be barred by
time could have been decided only after considering
19
the evidence led by the parties. Whether plaintiff
had any share in the property, which was sold in the
year 2000 and what was the nature of his share and
whether he can claim recovery of his share within
twelve years were all the questions on which final
adjudication could have been made after considering
the evidence and at the stage of considering the
amendment in the facts of the present case, it was
too early to come to a conclusion that limitation was
only three years and not twelve years as claimed by
the plaintiff. The High Court on the one hand
refrained from expressing any opinion and on the
other hand has expressed his agreement with the view
taken by the Additional District Judge rejecting the
application as barred by time.
19.While considering the prayer of amendment of the
pleadings by a party, this Court in the case of
Mahila Ramkali Devi & Ors. Vs. Nandram (Dead)
through Legal Representatives & Ors., (2015) 13 SCC
132 has again reiterated the basic principles, which
are to be kept in mind while considering such
applications in Paragrpahs 20, 21 and 22, which is
20
quoted as below:-
“20. It is well settled that rules of procedure
are intended to be a handmaid to the administration
of justice. A party cannot be refused
just relief merely because of some mistake,
negligence, inadvertence or even infraction
of rules of procedure. The court always
gives relief to amend the pleading of the
party, unless it is satisfied that the party
applying was acting mala fide or that by his
blunder he had caused injury to his opponent
which cannot be compensated for by an order of
cost.
21. In our view, since the appellant sought
amendment in Para 3 of the original plaint,
the High Court ought not to have rejected the
application.
22. In Jai Jai Ram Manohar Lal v. National
Building Material Supply3, this Court held
that the power to grant amendment to pleadings
is intended to serve the needs of justice and
is not governed by any such narrow or technical
limitations.”
20.Although, learned counsel for the parties in their
submissions have raised various submissions on the
merits of the claim of the parties, which need no
consideration by us since the only issue which has to
be considered is as to whether the amendment
application filed by the plaintiff deserves to be
allowed or not. We make it clear that we have neither
entered into merits of the claim nor have expressed
21
any opinion on the merits of the claim of either
party and it is for the trial court to consider the
issues on merits while deciding the suit.
21.Taking into overall consideration of the facts of the
present case and specially the fact that evidence by
the parties was led after the filing of the amendment
application, we are of the view that justice could
have been served in allowing the amendment
application. We thus allow the appeal and set aside
the order of the High Court as well as the order of
the Additional District Judge. The amendment
application I.A. No. 1001 of 2011 stand allowed.
Both the parties have led their evidences and case
has already been fixed for hearing, however, to avoid
any prejudice to the parties, justice will be served
in giving a limited opportunity to the parties to
lead additional evidence, if they so desire.
22.We thus direct that the parties may file this order
before the trial court within two weeks from today,
on receipt of the order, the trial court shall
consider on framing of additional issue, if necessary
22
and shall thereafter grant opportunity to the parties
to lead additional evidence, if any. The entire
exercise shall be completed within three months and
thereafter suit be decided finally. The parties
shall bear their own costs. We make it clear that we
have not expressed any opinion on merits of the case
including on the question of applicability of Article
110 of the Limitation Act and all the issues shall be
decided on the basis of materials on record without
being influenced by any observation made by us.
..........................J.
( A.K. SIKRI )
..........................J.
NEW DELHI, ( ASHOK BHUSHAN )
DECEMBER 11, 2017.
