Vitthal Damodar Thali Decd. Thr Lrs v. Karanja Macchimar Sahakari Soc. Ltd.
Amendment of pleadings – Proviso to Order VI Rule 17, Code of Civil Procedure, 1908 – Amendment sought by defendant after evidence of parties concluded
Case brief
What is this about?
Bombay High Court (Amit Borkar, J.), Writ Petition No. 12057 of 2024, decided 24.01.2025: writ petition challenging Trial Court order dated 18.01.2023 (below Exhibit 125) in Regular Civil Suit No. 45 of 2012 allowing the defendant's amendment application in a suit for cancellation of agreement after the evidence of parties was over. Held: under the proviso to Order VI Rule 17 CPC, once an amendment application is filed after commencement of trial the Court must record a due diligence finding; such satisfaction is a jurisdictional fact per Vidyabai v. Padmalatha, 2009 (2) SCC 409; the application did not explain delay or earlier non-inclusion, and the impugned order recorded no due diligence finding; order quashed and set aside, respondent given liberty to file a separate civil suit, no costs.
What did the court decide?
The impugned judgment and order dated 18th January 2023, passed by the Trial Court below Exhibit 125 in Regular Civil Suit No. 45 of 2012, was quashed and set aside; the respondent was left at liberty to seek appropriate relief in furtherance of the proposed amended pleadings by instituting a separate civil suit, if permissible under law; the writ petition was disposed of with no costs.