Harshit Sharma | Amity Law School, Madhya Pradesh | 20th January 2020
Pandit Malhari Mahale V/s. Monika Pandit Mahale & Ors. Civil Appeal No. 189/2020
FACTS OF THE CASE
- A suit for partition was filed by the respondents i.e. wife and children of the appellant. In the suit, evidence started and thereafter an application for amendment of plaint was filed by plaintiff No.3. The amendment was objected by the defendant (appellant herein). However, the learned Civil Judge by order dated 09.03.2016 allowed the application against which the writ petition was filed before the Hon’ble High Court, which was thereby dismissed.
- Thus, the present appeal is filed against the impugned judgment and order dated 14.08.2018 of the High Court.
ISSUES RAISED
Whether the amendment of pleadings be allowed in the present case and what essential ingredients is to be followed while allowing or dismissing the application of amendment of pleadings after the commencement of trial?
RULING OF THE COURT/THE COURT HELD THAT
While allowing the appeal and setting aside the order of the High Court as well as Ld. Civil Judge, the amendment application was dismissed and the following findings were observed:
- “Without their being any finding by the Court as contemplated by Order VI Rule 16 proviso, the Court ought not to have allowed the amendment.”
- In the present case, the Civil Judge has not returned any finding that the Court is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. Thereby relying on the case of Vidyabai & Ors. v. Padmalatha & Anr, wherein it was held that, “It is primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court’s jurisdiction in a case of this nature is limited. Thus unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.”
- “There being no finding by the Court that the Court is satisfied in spite of due diligence, the party could not introduce amendment before commencement of the trial, the order of the Trial Judge is unsustainable. The High Court has not adverted to the above aspect of the matter.”
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