Can a Court Allow a Time-Barred Amendment of Pleadings? Scope of Trial Court and First Appellate Court Powers Under Order VI Rule 17 CPC

Order VI Rule 17 CPC confers a wide discretionary power on civil courts to permit amendment of pleadings at any stage if the amendment is necessary for determining the real question in controversy between the parties. But this power is not unstructured: the court must weigh necessity, prejudice, limitation, due diligence, and the effect of the proposed amendment on the nature of the case.

A frequent question is whether a court can permit an amendment when the plea or relief sought to be introduced appears to be barred by limitation. The correct answer is: yes, in some cases; no, in others. There is no absolute prohibition against allowing a time-barred amendment, but a court should ordinarily decline such amendment when it introduces a fresh cause of action or a fresh relief that had already become barred on the date of the amendment application, because that would deprive the opposite party of a valuable accrued defence.

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Supreme Court: Fake License By Driver Doesn't Absolve Insurer in motor accident claim petition Unless Vehicle Owner Knowingly Allowed Breach

As has been noticed in Geeta Devi (supra) there is no

pleading or substantiation of due diligence having not been

employed at the time of entrustment. R1W1 was the

Advertising In-charge of the appellant who produced the

licence before the Court as Exhibit R1W1/1. The certificate

issued by the RTO Gurdaspur was also marked as R1 which

we referred to from the additional documents. In cross

examination, there was only a bland suggestion made to the

witness that the Directors of R2 knew that R1 possessed only

a fake driving licence. There were no questions put to the

witness, who was examined on behalf of the owner, as to the

actual entrustment of the vehicle or whether R1 was

employed regularly or temporarily and when such

employment commenced, which are crucial insofar as

proving or disproving due diligence by the owner at the time

of engagement of the driver and the entrustment of the

vehicle. As has been rightly held by the precedents above

noticed, the owner of a vehicle employing a driver can only

look at the licence produced by the person seeking

employment and is not expected to verify from the licence

issuing authority whether the licence is fake or not. {Para 16}

17. The insurance company from the totality of the

circumstances has to bring out the absence of due diligence

in the employment of the driver or the entrustment of the

vehicle, to prove breach by the insured, which is totally

absent in the present case.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal Nos.12442-12446 of 2024

Hind Samachar Ltd. (Delhi Unit). Vs  National Insurance Company Ltd. & Ors.

Author: K. VINOD CHANDRAN, J.

Citation: 2025 INSC 1204

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Supreme Court explains the difference in factors to be considered while deciding condonation of delay application either U/S 5 or U/S 14 of Limitation Act

Also, it must be remembered that merely because sufficient cause has been made out in the facts of a given case, there is no right in the Appellant to have delay condoned. This was felicitously put in Ramlal v. Rewa Coalfields Ltd.,   MANU/SC/0042/1961 : (1962) 2 SCR 762 as follows: {Para 60}

It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made Under Section 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of Section 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only Under Section 5 without reference to Section 14. (page 771).

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 995 of 2021.

Decided On: 19.03.2021

Government of Maharashtra (Water Resources Department) Vs. Borse Brothers Engineers & Contractors Pvt. Ltd.

Hon'ble Judges/Coram:

Rohinton Fali Nariman, B.R. Gavai and Hrishikesh Roy, JJ.

Author: Rohinton Fali Nariman, J.

Citation: (2021)6 SCC 460,2021SCCONLINE SC 233, MANU/SC/0195/2021.

Read full Judgment here : Click here.

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Supreme Court: Accused in cheque bounce case can disprove his signature on cheque by producing its certified copy

 Certified copy of a document issued by a Bank is itself

admissible under the Bankers’ Books Evidence Act, 1891 without

any formal proof thereof. Hence, in an appropriate case, the

certified copy of the specimen signature maintained by the Bank

can be procured with a request to the Court to compare the same

with the signature appearing on the cheque by exercising powers

under Section 73 of the Indian Evidence Act, 1872. {Para 15}

16. Thus, we are of the view that if at all, the appellant was

desirous of proving that the signatures as appearing on the cheque issued from his account were not genuine, then he could have procured a certified copy of his specimen signatures from the Bank and a request could have been made to summon the concerned Bank official in defence for giving evidence regarding the genuineness or otherwise of the signature on the cheque.

17. However, despite having opportunity, the accused appellant

did not put any question to the bank official examined in defence

for establishing his plea of purported mismatch of signature on the cheque in question and hence, we are of the firm opinion that the appellate Court was not required to come to the aid and assistance of the appellant for collecting defence evidence at his behest. The presumptions under the NI Act albeit rebuttable operate in favour of the complainant. Hence, it is for the accused to rebut such presumptions by leading appropriate defence evidence and the Court cannot be expected to assist the accused to collect evidence on his behalf.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal@SLP(Crl.) No(s). 16641 of 2023

AJITSINH CHEHUJI RATHOD Vs STATE OF GUJARAT & ANR.

Author: Mehta, J.

Citation: 2024 INSC 63.

Dated: January 29, 2024.

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Can a Joint Secretary of a Cooperative Society be held liable for financial losses caused by a fraudulent loan applicant when the loan was sanctioned by the management committee?

 In the given facts and circumstances of the present case, it cannot be fathomed that Respondent No. 6 being the Joint Secretary of the Society and one of the office bearers of the Managing Committee can be solely held responsible and liable for disbursement of loan to a person who is not an employee of the Police Department. The most important aspect for consideration is the fact of due diligence in such a case. Appropriate enquiry and due diligence if carried out by those responsible to do so before recommending the application of such persons (Applicants) for loan sanction to the Managing Committee could have unearthed the genuineness of the Applicants. Therefore the role of Respondent No. 6 needs to be understood in its proper perspective. It is on record that a resolution to that effect was passed by the Society assigning and authorising individual Managing Committee members to sign the cheques of the loan amount which were signed by the Managing Committee. In that view of the matter, the entire Managing Committee is liable and responsible and not the member who has appended his signature on the cheque for disbursement of loan. If the Enquiry Officer has exonerated the other Managing Committee members then in that case indictment of Respondent No. 6 is high handed and arbitrary. All that is needed to be seen in the present case is that the Managing Committee members had been authorised by the Managing Committee to sign the cheques for disbursement of loan. In that view of the matter, it cannot be held that only Respondent No. 6 and three other members of the Committee are liable for causing financial loss to the Society and are liable for reimbursement of the said financial loss. It is reiterated that verification, due diligence and scrutiny of the application for seeking loan is the most important step which is verified by the Manager of the Society or those responsible who are entrusted with the said work and appointed by the Society for the same. This is a classic case where the Managing Committee has sanctioned the loan amount and an individual office bearer of the Managing Committee who has been entrusted with the responsibility and duty of signing the cheques is held responsible for disbursement of loan. This cannot be countenanced in the facts of the case. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1475 of 2017

Decided On: 14.06.2023

Brihanmumbai Police Karmachari Sahakari Pat Sanstha Maryadit

Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Milind Narendra Jadhav, J.

Citation: MANU/MH/2099/2023.

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Whether the court should reject plaint if the issue of limitation is a mixed question of law and fact?

 It is clear from a perusal of the aforesaid judgment that the policy of the section 14 of the Limitation Act is to afford protection to a litigant when he institutes a proceeding in a wrong court provided this act was done in good faith and bona fide. The section has to be interpreted liberally in a manner to advance the cause of justice rather than to abort the proceedings. The plaintiff has to establish the fact that the prior proceedings have been instituted/prosecuted in good faith and due diligence. This is obviously a question of fact which the plaintiff has to prove.

 I may note that usually the issue of limitation is a mixed question of law and fact. What defendant No. 1 seeks is an adjudication of the issue of limitation at the initial stage itself before even an opportunity has been given to the plaintiff to show that it was prosecuting the litigation before the Bombay High Court with due diligence and in good faith.{Para 22}

24. While considering an application under Order 7 Rule 11 CPC only averments made in the plaint are to be looked at and the accompanying documents. Reference in this context may be had to the judgment of this court in the case of Tilak Raj Bhagat vs. Ranjit Kaur wherein this court held as follows:-

"6. It may be worthwhile to mention here that while considering an application under Order 7 Rule 11 CPC, the Court has to look at the averments made in the plaint by taking the same as correct on its face value as also the documents filed in support thereof. Neither defence of the defendant nor averments made in the application have to be given any weightage. Plaint has to be read as a whole together with the documents filed by the plaintiff."

28. Hence, for the purpose of considering an application under Order 7 Rule 11 CPC only the averments made in the plaint have to be taken presuming them to be correct on the face of it along with the documents filed in support of the plaint. It is only in cases where the averments in the plaint itself indicate the cause of action to be barred by limitation that the plaint can be rejected at the initial stage. This must be on a mere ex facie reading of the plaint.

 As noted above, every act of the plaintiff in filing a suit in a court other than the court which as per the Agreement has exclusive jurisdiction, does not necessarily imply that the act was done without due diligence or in good faith. It would be for the plaintiff to lead evidence on this aspect. What the defendant want is that the defence of the defendant be taken into account and the plaint be dismissed without giving an opportunity to the plaintiff to lead evidence to show that the reason for pursuing the matter before the Bombay High Court was bona fide and with due diligence. This plea is clearly not permissible. On a ex-facie reading of the plaint it cannot be said that it is barred by limitation.

IN THE HIGH COURT OF DELHI

CS (OS) 105/2018

Decided On: 15.06.2020

Modtech Furniture Private Ltd.  Vs.  NCUBE Planning Design Private Limited and Ors.

Hon'ble Judges/Coram:

Jayant Nath, J.

Citation: MANU/DE/1236/2020

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Whether petitioner can add ground for divorce by amending his HMP petition?

After hearing both sides, what appears on record is that the proposed amendments are based upon the grounds already available to the petitioner under Section 10 of the Hindu Marriage Act and also the relief which can be even otherwise sought by the petitioner. By the proposed amendments, the petitioner is seeking to add ground in Clause (i-a) of Section 13(1) of the Hindu Marriage Act and as this ground is also available under Section 10 of the Act, I do not see any impediment in allowing such an amendment. As regards the additional relief of divorce being sought by the petitioner, I am of the view that it would not basically change the nature of proceedings as it is not something which would efface the original relief which was of a decree for judicial separation sought by the petitioner. The proposed amendment can be said to be amounting to changing the nature of proceedings only when it is completely inconsistent with the original amendment or is of such a nature as to have the effect of rendering the original pleadings absurd or having no effect. Such is not the impact which the proposed amendment in respect of addition of the relief for divorce would have on the original relief of the judicial separation. Therefore, on this count also, I do not think that the proposed amendments could be refused by the Court.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 2012 of 2017

Decided On: 15.06.2018

 Premdeep Nishikant Matlane Vs.  Bhavana

Hon'ble Judges/Coram:

S.B. Shukre, J.

Citation: 2019(2) MHLJ 575

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When test of due diligence is not applicable while deciding application of amendment of pleading?

 There is also an argument made on behalf of the respondent about the bar of Order VI Rule 17 of the Code of Civil Procedure in the sense that, according to the respondent, the proposed amendments have been filed belatedly at the time when the trial of the suit commenced and no explanation for the delay has been given by the petitioner. The argument, I must say with due respect, cannot be accepted for the reason that this is not a case of possession of knowledge of material facts at some point of time, but a case of change of mind, resulting in change of decision. Due diligence test can be reasonably applied to the facts already within the knowledge of a party and yet not pleaded at the right time. When it comes to change of mind or change of decision at a later point, the case is one of a fresh event having taken place which was neither existing in gross earlier nor something in contemplation of a party before. This would enable me to hold that the test of due diligence to such matters does not apply.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 2012 of 2017

Decided On: 15.06.2018

 Premdeep Nishikant Matlane Vs.  Bhavana

Hon'ble Judges/Coram:

S.B. Shukre, J.

Citation: 2019(2) MHLJ 575

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Whether application for recasting of issues is maintainable after six years of framing of issues at stage of final argument?

 In so far as the impugned order dated 10th July 2018 passed by the learned trial Judge rejecting the application for recast of the issue no. 1 is concerned, it is not in dispute that the issues were already framed by the learned trial Judge on 15th September 2012. After framing of five issues including the said issue no. 1 which was sought to be recast by the petitioner, the petitioner had already filed an affidavit of evidence as far back as on 2nd August 2012. The said application for recast of issue no. 1 was filed after rejection of the application filed by the petitioner for seeking amendment of the plaint i.e. by an order dated 25th April 2018. Both the parties have already led evidence based on the issues framed by both the parties. The matter is now placed for final argument. Learned counsel for the respondent nos. 1 to 5 submits that he has no objection if the issue no. 1 is partly modified in so far as the issue of possession is concerned. Statement made by the learned counsel for the respondent nos. 1 to 5 is accepted.

18. A perusal of the order passed by the learned trial Judge clearly indicates that the said application below Exhibit-77 has been rejected by a reasoned order. The suit was already posted for final argument and has been adjourned from time to time on one or the other grounds. The learned trial Judge has also considered the pleadings filed by both the parties in this regard and has held that the said issue no. 1 was framed after considering the pleadings. The petitioner never raised any objection when the said issue no. 1 was framed by the trial Court as far back as on 15th September 2012 till filing of an application on 5th June 2018.

19. In so far as the submission of the learned counsel for the petitioner that the issue could be recast at any stage prior to the decree passed by the learned trial Judge under Order XIV Rule 5 is concerned, in my view, since the issue was framed properly after considering the pleadings filed by both the parties which was not challenged by the petitioner for last 6 years, the petitioner could not be allowed to file such application and after the order passed by the learned trial Judge placing the matter on board for final argument. The entire evidence is already led by both the parties based on the original issue no. 1. In these circumstances, no interference is warranted with the orders passed by the learned trial Judge in this petition under Article 227 of the Constitution of India.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 8717 of 2018

Decided On: 10.09.2018

 Archana Ashok Amburle Vs. Arpana Shankar Dudham and Ors.

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

Citation: 2019(2) MHLJ 67

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Whether plaintiff can get benefit of S 14 of limitation Act if he has failed to prove that he was prosecuting previous proceeding with due diligence?

Sub-section (1) of section 14 of the Limitation Act, which admittedly governs the present case, is in these terms :-

"(1). In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it."

7. In order to bring his case within the section quoted above, the plaintiff has to show affirmatively :

(1) that he had been prosecuting with due diligence the previous suit in the court of the Munsif at Miraj,

(2) that the previous suit was founded upon the same cause of action,

(3) that it had been prosecuted in good faith in that court, and

(4) that that court was unable to entertain that suit on account of defect of jurisdiction or other cause of a like nature.

8. There is no dispute between the parties here that conditions (2) and (4) are satisfied. But the parties differ with reference to the first and the third conditions. It has been argued on behalf of the appellants that the courts below had misdirected themselves when they observed that there was no proof that the plaintiff had not been diligently prosecuting the previously instituted suit, or that it was not being prosecuted in good faith; that the section requires that the plaintiff must affirmatively show that the previously instituted suit was being prosecuted in good faith and with due diligence; and that, viewed in that light, the plaintiff has failed to satisfy those conditions.

9. The conclusion of the learned trial judge on this part of the case, is in these words :-

"The plaintiff's mala fides are therefore not established and the period occupied in prosecuting the former suit must be excluded under section 14 of the Limitation Act."

10. The observations of the High Court are as follows :-

"We do not see our way to accuse the plaintiff of want of good faith or any mala fides in the matter of the filing of the suit in the Subordinate Judge's Court at Miraj. There is nothing on the record to show that he was really guilty of want of good faith or non-prosecution of the suit with due diligence in the Court of the Subordinate Judge at Miraj."

11. Both the courts below have viewed the controversy under section 14 of the Limitation Act, as if it was for the defendant to show mala fides on the part of the plaintiff when he instituted the previous suit and was carrying on the proceedings in that court. In our opinion, both the courts below have misdirected themselves on this question. Though they do not say so in terms, they appear to have applied the definition of "good faith" as contained in the General Clauses Act, to the effect that "A thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not." But the Indian Limitation Act contains its own definition of good faith to the effect that "nothing shall be deemed to be done in good faith which is not done with due care and attention" - (section 2(7)). We have, therefore, to see if the institution and prosecution of the suit in the Munsiff's Court at Miraj, was done with due care and attention. We know that the plaint in the Tikoni suit filed by the same plaintiff in the same court, did contain a statement as to the value of the subject-matter, but it was conspicuous by its absence in the plaint in the suit as originally filed in the Munsiff's Court at Miraj. All the facts alleged in the plaintiff's petition for the return of the plaint, were known to the plaintiff ever since the institution of the suit. Nothing fresh was discovered in 1940. On the other hand, we know definitely that the Tikoni suit had been dismissed by the trial court on merits. The suits were of an analogous character in the sense that the controversy was similar in both of them. The appellant's contention that on the dismissal of the plaintiff's Tikoni suit in November, 1939, he, naturally, became apprehensive about the result of the other suit, and then moved the court for the return of the plaint on the ground of pecuniary jurisdiction, appears to be well-founded. The plaintiff knew all the time that the value of the properties involved in the suit, was much more than Rs. 5,000 which was the limit of the pecuniary jurisdiction of the Subordinate Judge's Court. Can an omission in the plaint to mention the value of the properties involved in the suit, be brought within the condition of 'due care and attention' according to the meaning of "good faith" as understood in the Limitation Act ? It has to be remembered that it is not one of those cases which usually arise upon a revision of the valuation as given in the plaint, on an objection raised by the defendant contesting the jurisdiction of the court to entertain the suit. Curiously enough, the defendant had not raised any objection in his written statement to the jurisdiction of the court to entertain the suit. Apparently, the plaintiff was hard put to it to discover reasons for having the case transferred to another court. The question is not whether the plaintiff did it dishonestly or that his acts or omission in this connection, were mala fide. One the other hand, the question is whether, given due care and attention, the plaintiff could have discovered the omission without having to wait for about 10 years or more. The trial court examined the plaintiff's allegation that the omission was due to his pleader's mistake. As that court observed "he makes this contention with a view to shield himself behind a wrong legal advice." That court has answered the plaintiff's contention against him by observing that the plaintiff was not guided by any legal advice in this suit; that the plaint was entirely written by him in both the suits, and that he himself conducted those suits in the trial court "in a manner worthy of a senior counsel." The court, therefore, rightly came to the conclusion that the plaintiff himself was responsible for drafting the plaint and for presenting it in court, and that no pleader had any responsibility in the matter. No reason was adduced why, in those circumstances, the value of the subject-matter of the suit, was mentioned in the plaint in the Tikoni suit but not in the plaint in respect of the present suit.

12. There is another serious difficulty in the way of the plaintiff. He has not brought on the record of this case any evidence to show that he was prosecuting the previously instituted suit with "due diligence" as required by section 14. He has not adduced in evidence the order-sheet or some equivalent evidence of the proceedings in the Sub-Judge's Court at Miraj, to show that in spite of his due diligence, the suit remained pending for over ten years in that court, before he thought of having the suit tried by a court of higher pecuniary jurisdiction. In our opinion, therefore, all the conditions necessary to bring the case within section 14, have not been satisfied by the plaintiff. There could be no doubt about the legal position that the burden lay on the plaintiff to satisfy those conditions in order that he may entitled himself to the deduction of all that period between January 31, 1929 and July 4, 1940. It is also clear that the courts below were in error in expecting the contesting defendant to adduce evidence to the contrary. When the plaintiff has not satisfied the initial burden which lay upon him to bring his case within section 14, the burden would not shift, if it ever shifted, to the defendant to show the contrary. 

IN THE SUPREME COURT OF INDIA

Civil Appeals Nos. 287 and 288 of 1955

Decided On: 18.04.1958

Madhavrao Narayanrao Patwardhan Vs. Ramkrishna Govind Bhanu and Ors.

Hon'ble Judges/Coram:

B.P. Sinha, K. Subba Rao and Syed Jaffer Imam, JJ.

Citation: AIR 1958 SC 767

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Whether delay in filing application U/S 34 of Arbitration can be condoned taking recourse to S 14 of limitation Act?

 Section 14 of the Limitation Act is a hard task master and it should not be set into operation very lightly and in a routine manner. In Madhurao N. Patwardhan v. Ram Kishan MANU/SC/0113/1958 : AIR 1958 SC 767, it was held that the following conditions must be satisfied by the applicant for bringing its case within the four corners of Section 14 of the Act (supra): that he had been prosecuting the previous suit with due diligence and in good faith; that the matter in issue in the previous suit and the new suit are the same; that the Court was unable to entertain that suit on account of defect of jurisdiction or other cause of a like nature. But, in the instant case, none of the above referred conditions have been fulfilled by the applicant by virtue of which the period which has been spent by it in prosecuting the litigation before the other Courts could be excluded. As such, by no stretch of imagination, it can be held that the Section 14 of the Act (supra) is (sic) applicable to the facts of the case.

9. Furthermore, now it is to be seen as to whether there is any scope to condone the delay for preferring the objections by the applicant. The controversy was set at rest by the Hon'ble Supreme Court of India in case Union of India v. M/s. Popular Construction Co. (supra), wherein it was held that the Court cannot condone delay in exercise of its discretion Under Section 5 of the Limitation Act in filing application Under Section 34 of the Act, 1996. Further, in case Senior Executive Engineer v. Minhas Builders MANU/PH/3766/2010 : (2010) 4 CCC 374 (P & H), it was held that where there is delay in filing objections to Arbitration Award then period of limitation cannot be extended even by invoking Section 5 of the Act.

IN THE SUPREME COURT OF INDIA

C.A. No. 5332 of 2017

Decided On: 07.04.2017

Haryana State Cooperative Labour and Construction Federation Ltd. 

Vs.

Unique Cooperative Labour and Construction Cooperative Society Ltd. and Ors.

Hon'ble Judges/Coram:

J.S. Khehar, C.J.I., Dr. D.Y. Chandrachud and Sanjay Kishan Kaul, JJ.

Citation: (2018) 14 SCC 248

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Factors to be considered by court while deciding application for production of documents at the stage of final argument

 Coming to the merits of these contentions, the first contention raised by the learned counsel for the petitioner with regard to the maintainability of the additional evidence merits rejection at the very out set, in vie.w of the recent judgment rendered by this Court in the case of Chandgi v. Mehar Singh, Civil Revision No. 2134 of 1997 decided on 12-3-1998 (reported in MANU/PH/0254/1998) wherein it has been held that the application for additional evidence, can be moved at any stage that is till the Court concerned becomes functus offtcio of the matter before it and signs the judgement finally determining the issues involved in the suit.

"The concept of additional evidence has been given wider dimension in the recent judgment of Hon'ble Apex Court in Jaipur Development Authority v. Smt. Kailashwati Devi MANU/SC/0819/1997 : (1997) 117 Pun LR 880 : AIR 1997 SC 3243) (SC), where the Court held that additional evidence could be allowed even at the Appellate stage under Rule 27(aa) of Order 41, C.P.C. if the applicant satisfies the basic requirements of the rule and even no evidence has been led by the applicant at the trial stage. In that case ex pane decree was passed against the defendant in the suit, the appeal was preferred before the High Court and two documents were sought to be filed which were in possession of the defendant relating to possession of the suit property. High Court rejected the said prayer , but the same was allowed by Hon'ble Apex Court.

The cumulative effect of the above well enunciated provisions governing the subject is that the Court has to exercise its jurisdiction to derive balance between ends of justice and extent of default of the applicant. The powers given to the Court under Sub-rule (4) of Rule 2 of Order 18 cannot be curtailed by reading the provisions Of Rule 17-A of the same order. Both these provisions must be read and construed harmoniously so as to further cause of justice and necessary for effective and complete adjudication of rival contentions raised by the parties in a suit or proceedings. The procedural law must be moulded to further cause of justice rather than frustrate the same. Non-production of documents after exercise of due diligence appears to be very foundation of filing such an application. Compliance of this condition must be seen in context to the facts and circumstances of the case and in conformity with the record before the Court. Exercise of due diligence would have to give wider and meaningful connotation which must be in conformity with the basic rule of law. In some cases negligence of a party or counsel may not really have the effect of rendering such an application untenable. This view finds support from the case of Jaipur Development Authority (Supra).

IN THE HIGH COURT OF PUNJAB AND HARYANA

Civil Revn. No. 1595 of 1993 and Civil Misc. No. 6697-C.I.I. of 1994 (O&M)

Decided On: 19.03.1998

 Mam Raj Vs. Smt. Sabiri Devi and Ors.

Hon'ble Judges/Coram:

Swatanter Kumar, J.

Citation: AIR 1999 P & H 96

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Whether court should permit production of expert report during pendancy of proceeding?

 Even if assumingly, the original building plan hence stands appended with rent petition, yet when it may not disclose with, the, utmost precision, and, with ultra specificity, as may, hence stand disclosed in the report, of, the expert, the utmost necessity, of, the landlord/respondent herein, hence, bona fidely requiring it, for personally using it, upon, its being vacated, under, order(s), of, eviction being rendered by the learned Rent Controller, (i) thereupon also when, the expert's report, upon, its adduction, may also hence support the utmost necessity of the landlord, and, further may enable, the, emergence, of, best evidence, vis-à-vis, his bona fide(s), in, seeking, the, eviction of the tenant/petitioner herein, therefrom, (ii) whereupon, the apt leave is granted, for its being tendered into evidence, given its affording, being concomitantly both just and essential, for resting the apt controversy.

5. Be that as it may, even otherwise, the courts of law, are, expected to lean towards granting the apt leave, dehors any afore stricto sensu, construction being meted to the afore coinage hence occurring in the aforesaid statutory provisions, (i) unless demonstrable prejudice would ensue, to the petitioner/tenant or unless the discretion exercised, by the courts, in, permitting its/theirs being tendered into evidence, is, visibly rather grossly flawed, (ii) given courts, upon, discerning, from, the pleadings, the, necessity of its/their adduction, hence, for resting a clear clinching finding, upon the apt issue, thereupon, may being constrained, to validly conclude qua the apt leave being rather accordable. Significantly, hereat when for reasons aforestated, the afore report of the expert, is both, just and essential, for enabling the applicant/landlord, to, prove the apt ground, and, when the petitioner herein/tenant, would also hold the right, to cross-examine him, and, when hence no palpable prejudice would stand encumbered, upon, the non-applicant/petitioner/tenant, thereupon, this Court is constrained, to affirm the impugned order.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CMPMO No. 251 of 2018

Decided On: 28.09.2018

 Suman Bala Vs. Rakesh Sood

Hon'ble Judges/Coram:

Sureshwar Thakur, J.

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Whether court should allow amendment of plaint after commencement of trial?

 In the present case the record of Civil Suit No. 195 of 1968 in which ex parte decree was passed on 30.06.1969 is not traceable. In the circumstances, there could possibly be some inability in obtaining correct particulars well in time on part of the Appellants. At the time when the application for amendment was preferred, only two official witnesses were examined. The nature of amendment as proposed neither changes the character and nature of the suit nor does it introduce any fresh ground. The High Court itself was conscious that the amendment would not change the nature of the suit. In the given circumstances, in our view, the amendment ought to have been allowed. In any case it could not have caused any prejudice to the Defendants.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4568 of 2018 (Arising out of SLP (Civil) No. 7710 of 2018)

Decided On: 27.04.2018

 Gurbakhsh Singh Vs.  Buta Singh and Ors.

Hon'ble Judges/Coram:

Arun Mishra and U.U. Lalit, JJ.

Citation:(2018) 6 SCC 567

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Whether party can add pleading regarding issue of law at any stage of proceeding?

As a corollary to the above discussion it needs to be observed with certitude that the issue as raised by the petitioner in the amendment application was in regard to the jurisdiction of the Family Court when issues of res judicata and conclusiveness of the decree of the Dubai Court are being asserted. This is an issue of law. In any case the plea as being urged in the amendment to the written statement is a plea of jurisdiction which can be permitted to be raised at any stage of the proceedings.
IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 12862 and 12863 of 2017

Decided On: 22.01.2018

 Vishal Nitinkumar Kondhia Vs. Jahnvi Vishal Kondhia

Hon'ble Judges/Coram:

G.S. Kulkarni, J.

Citation: 2018(3) MHLJ 823

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Whether court can permit amendment of plaint to permit adding of plea of readiness and willingness in suit for specific performance of contract?

The plaintiff specifically stated that it was only due to an omission that he did not plead specifically in the plaint that he was ready and willing and continues to be ready and willing to perform his part of the contract. The question is whether in spite of due diligence, the plaintiff could have raised the matter before commencement of trial. The plaintiff stated in the affidavit in lieu of chief examination about his readiness and willingness to perform his part of the contract. An omission is something which is not made consciously. If it is made consciously, strictly speaking, it cannot be said that it is a bona fide omission. Sometimes, an omission could not be found out in spite of due diligence in prosecuting the litigation. Simply because the plaintiff omitted to mention something in the plaint, not deliberately, it cannot always be said that he was not acting with due diligence. The question whether the plaintiff acted with due diligence and whether he could have raised the matter before the commencement of trial, all depend on the facts and circumstances of each case. The fact that the plaintiff stated in evidence about the readiness and willingness would indicate that it was not a deliberate omission in the plaint, but an accidental omission.

21. Amendment of the plaint would relate back to the date of plaint. The Supreme Court has made it clear that in the facts and circumstances of each case, the Court can allow an amendment to be carried out in the plaint, though the relief in respect of the amendment was barred by limitation as on the date of the plaint. In the present case, the relief claimed is a relief for specific performance of an agreement for sale. By the amendment of the plaint, no other relief is sought to be introduced. An averment which is required to enable the plaintiff to get the relief pleaded in the plaint is sought to be incorporated by way of amendment. Therefore, it cannot be said that the claim put forward in the application for amendment is barred by limitation. The question to be considered is whether the relief for specific performance is barred by limitation. Evidently, it is not barred. A fact to be proved to enable the plaintiff to get the relief of specific performance can be added or incorporated even after the period of limitation. In such a case, the suit would not be barred as on the date of filing of the application for amendment. Therefore, there is no reason to accept the contention of the defendants that the application for amendment, if allowed, would have the effect of allowing the plaintiff to incorporate a relief in the plaint which is barred by limitation. For the aforesaid reasons, I am of the view that the court below was not justified in dismissing the application for amendment of the plaint. The order passed by the court below is set aside and the application for amendment of the plaint is allowed on condition that the plaintiff shall pay a sum of ` 1,500/- as costs to the defendants.

IN THE HIGH COURT OF KERALA

O.P.(C) No. 625 of 2010

Decided On: 28.10.2014

Mohanan Nair Vs. Premachandran Nair and Ors.

Hon'ble Judges/Coram:

K.T. Sankaran, J.

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Whether court can allow amendment of written statement on ground of negligence of Advocate?

 In the instant case, the statement that in spite of being duly instructed, the learned Advocate on record did not incorporate the pleading as sought to be raised is the only justification for not raising the plea earlier. However, it cannot be taken to answer the test of "due diligence" as required by the proviso under Rule 17, Order 6, Civil Procedure Code. The proviso contemplates parties to exercise due care and caution in raising the matter before the Court and once trial commenced, no new or additional plea can be permitted to be raised unless the party shows that with all diligence at its command, it could not raise it before commencement of the trial. The due diligence prescribed by the proviso is of the parties and of nobody else including the Advocate on record. If Counsel of the party refuses to take up certain pleas wished by his client to be taken up, the least and perhaps the only thing the client can do to get his wish fulfilled is to go to another counsel who will pay heed to him or else accept the judgment of his counsel for good. If he adopts the latter course, he cannot say later on, almost as an afterthought and by way of repentance, that although he toiled hard, he could not raise the plea earlier due to the stand taken by his earlier counsel. If a party chooses to accept the advice of Advocate "completely believing in him and his extra ordinary experience" as mentioned in the petitioner's amendment application in the present suit, instead of going to another Advocate well in time, he cannot be heard to say and imply that he was diligent when he "duly instructed" the Advocate but was helpless when his Advocate refused to follow the particular instructions. Due diligence contemplated by the said proviso is something akin to situation of helplessness or of things, beyond one's own control. Such is not the case here. A party always has the choice of Advocates.

13. A party can of course say, he being not a legal expert, would not know immediately that decision of his Advocate is not sound and so he would not be in a position to promptly exercise his choice of Advocates and would be able to do so only after passage of some time, when he would learn or be told about the incorrectness of approach of his Advocate. Even this justification, in my opinion, cannot answer the test of due diligence. The reason being that a representative or Advocate and the party being represented in a case are not two separate identities in that case, so far as conduct of the case is concerned. Whatever an Advocate does on behalf of the client is considered to be done by the party himself. The acts of the Advocate before the Court are binding upon the party he represents and what he submits before the Court on facts is only what the party says and what he says in law is with the approval, express or assumed, of the party. In other words, all actions taken before the Court by an Advocate, are the actions of the party. So, there is no splitting of concept of due diligence, one of the party and the other of the Advocate, so as to enable the party to be excused for negligence of the Advocate just by showing his own diligence. If such a ground is to be taken as a good ground, it may provide an effective tool to the lazy and indolent parties to conveniently get over the rigour of due diligence test prescribed under the proviso to Rule 17, Order 6, Civil Procedure Code. All that he would have to do is change the Advocate blaming it on the previous Advocate.

IN THE HIGH COURT OF BOMBAY AT GOA

W.P. No. 625 of 2013

Decided On: 11.04.2014

Conception Fernandes Vs.Tasneem Shaikh

Hon'ble Judges/Coram:

S.B. Shukre, J.

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Whether defendant can be made liable to pay mesne profits for land which was under court attachment?

The fourth contention deserves consideration. The definition of mesne profits as given in the Codeof Civil Procedure, Section 2, Sub-Section (12) runs in these words: "Mesne profits of properties means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received there from together with interest on such profits, but shall not include profit s due to improvements made by the person in wrongful possession." Wrongful possession by the defendant is the very essence of a claim for mesne profits, and the very foundation of a decree therefor. In the case of Haradhun Duit v. Joy Kisto Banerjee (1869) 11 W.R. 444, Jackson, J. observed that it would be impossible to hold the defendant liable for profits which he had not received and could not have received. In the case of Indurjeet Singh v. Radhey Singh (1874) 21 W.R. 269, Phear J., observed as follows: "Generally from the nature of claim to mesne profits, means profits ought not to be estimated for any period during which the defendant, who is to be made responsible for them was not active in keeping the plaintiff out of possession." In that case the property was in the hands of a Receiver appointed by the Court and the learned Judge pointed out that the defendant could not be answerable for damages for mesne profits in respect of those years during which an officer of the Court and not the defendant was keeping the plaintiff out of possession. In the case of Abbas v. Fassihuddin [1897] 24 Cal. 413 Trevelyan and Beverley, JJ., observed, "If the defendant was excluded from possession she can scarcely be said to have been in wrongful or any possession. She cannot be said to have actually or even impliedly received the profits, nor could she, with ordinary or extraordinary diligence, have received them." It was further held in that case that a wrongdoer is not responsible for the acts of another wrong-doer who is independent of him. In the case of Ishan Chandra Budhan v. Amuddin [1901] 5 C.W.N. 720, Hill, J. held that damages are claimable only for the period of the defendant's wrongful possession actual or constructive. The same principle is deducible from the decisions in the case of Churn Singh v. Rangoo Singh [1871] 15 W.R. 221 and Kishnanand v. Partab Narain [1884] 10 Cal. 785. In the case of Kali Charan v. Ashutosh [1916] 25 C.L.J. 140 Sanderson, C.J., at p. 144 very clearly pointed out the necessity of the defendant being in possession during the period for which the mesne profits were claimable, and Mookerjee, J. at pp. 147-148 on a review of the authorities laid down " that it is an elementary rule that in an action for mesne profits when the ground of the action is the bare fact of possession, damages can only be recovered for the time possession was actually retained." Applying these principles to the question which we have to consider in my opinion it is impossible to hold by any stretch of imagination, that during the time that the lands remained under attachment by the operation of the order under Section 146, Cr.P.C. and this Court was in custody of it on behalf of the rightful owners, that is to say of the plaintiffs in the present case, that the defendants were in possession of the lands. The direction regarding mesne profits in so far as it relates to the 9 hals of land kept under attachment as aforesaid cannot therefore be supported in law.

Calcutta High Court

Chhaganmull Agarwalla And Ors. vs Amanathulla Mohammad Prodhan And ... on 13 March, 1924

Equivalent citations: AIR 1924 Cal 1010

JUDGMENT M.N. Mukerji, J.

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Basic principles to be followed by court while deciding application for restoration of suit

The narration of facts hereinbefore clearly reveals that the applicants were not at all diligent in conducting their case ever since May, 2005. Once the writ petition was initially dismissed for default on 19th August, 2013 and was brought back to life by an order dated 14th February, 2014, it was required to be pursued vigorously and prosecuted with due diligence and in right earnest. It has been recently held by this Court in Shankari Naskar v. Kolkata Port Trust and Others, reported in MANU/WB/1136/2015 : AIR 2016, Calcutta 91, that a lis cannot be successively brought back to life merely because a litigant has a right to file a recalling application seeking restoration of his/her lis after each dismissal. This will result in a situation where a litigant-having carriage of proceedings-is allowed to keep his/her lis pending indefinitely before a Court of law thereby causing immense prejudice to the other side who is invariable kept on tenterhooks for an indefinite period of time. It will also result in a situation simply unheard of and unacceptable in a modern justice system, i.e., a lis pending in perpetuity. Successive applications for recalling, emanating from each order of dismissal in respect of a single lis and consequently having the said lis restored to its original file and number each and every time is an unacceptable proposition, which, if indulged by a Court, will encourage a litigant to adopt such tactics only in order to keep his/her lis pending for an indefinite period of time. The closure of a lis, not prosecuted with due diligence or in right earnest by a litigant, therefore, is inevitably warranted, especially when it is evident from record that a litigant is having his/her lis restored successively, consequent upon each order of dismissal, by having the same recalled each and every time.

IN THE HIGH COURT OF CALCUTTA

CAN 7184 of 2016 and CAN 4436 of 2014 in WP No. 1955(W) of 2002

Decided On: 05.08.2016

 Biswananda Naskar and Ors.

Vs.

 State of West Bengal and Ors.

Hon'ble Judges/Coram:

Biswanath Somadder, J.

Citation:AIR 2017 Cal 53

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Whether court will be barred from allowing amendment of plaint prior to filing of examination in chief?

In view of the aforesaid discussion, the view expressed by learned Single Judges of this Court in "Ajit Narsinha Talekar Vs. Smt. Nirmala Wamanrao Kakade and others"2010 (5) Mah. L.J. 481, " Bhagwandas Kanhaiyyalal Bubna Vs. Shyamsundar Wasudeo Bubna and others" (MANU/MH/1594/2009 : 2010 (1) Bom. C.R. 218, and " Vinod s/o Khimji Lodaya and another V. The Chief Executive Officer and others (Civil Revision Application No. 123/2009)", needs to be endorsed as legal and proper. In our considered view, the trial in a civil suit commences from the date of filing of affidavits in lieu of the examination in chief of the witness/ es and the proviso to order 6 Rule 17 of the Code of Civil Procedure, 1908 will come into play only after stage of filing of affidavits in lieu of examination in chief of witness/ es. 

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 9659 of 2010

Decided On: 04.09.2012

 Mahadeo

Vs.

Balaji

Coram:

N.H. Patil and U.D. Salvi, JJ.

Citation: 2012(7) ALLMR564

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