CHANDER KANTA BANSAL versus RAJINDER SINGH ANAND

Citation: [2008] 4 S.C.R. 748 · Decided: 11-03-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

• 
[2008] 4 S.C.R. 748 
A 
CHANDER KANTA BANSAL 
j 
v. 
RAJINDER SINGH ANAND 
(Civil Appeal No. 1893 of 2008) 
B 
MARCH 11, 2008 
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.] 
Code of Civil Procedure, 1908 - Or. 6, r. 17: 
Amendment of pleadings, after commencement of trial 
c - Scope - Suit for right of passage between two portions of the 
same property - Application of defendant for amendment of. 
written statement 18 years after filing of the suit - Held: Could 
not be allowed, .as the defendant .failed to substantiate the 
'-
inordinate delay in filing the application, that too after closing 
D of evidence and arguments -
Explanation offered by 
defendant not shown to be bonafide and cannot be accepted 
- Delayllaches. 
.... 
Words and Phrases - "Due diligence" - Meaning of 
E 
. Appellant and Respondent were jointly allotted a 
House Building Cooperative Society plot. The plot was 
partitioned with the mutual consent of the parties. The 
front portion was allotted to Appellant while the back 
portion was allotted to Respondent. Both parties raised 
F construction on their respective portions and were in use 
and occupation of the same. In 1986, Respondent filed 
suit for right of passage alleging that Appellant had 
encroached upon the common driveway. Written 
statement was filed by the Appellant in 1986 itself and the 
G witnesses were examined. 
In 2004, Appellant filed application under Order VI 
Rule 17 rlw Section 151 CPC for amendment of written 
statement seeking permission of the Court to file a written 
~ 
agreement allegedly executed between the parties in 1982. 
H 
748 
,, 
CHANDER KANTA BANSAL v. RAJINDER SINGH 
749 
ANAND 
She pleaded that she was a house wife and her Chartered A 
Accountant son, who was following the litigation, had died 
in 1998; that the alleged agreement was in custody of the 
said deceased son, which, after his death, was located 
by her other son and that since the said agreement has a 
material bearing on the dispute between the parties, her s 
application for amendment of written statement should 
be allowed. Respondent filed reply, denying execution of 
)-
the alleged agreement o( 1982. He contended that the 
application for amendment was filed more than 18 years 
after filing of the suit with a view to frustrate his claim; c 
that after the final arguments, when the defendant realized 
that she was going to lose her case, she changed her 
stance by filing the application for amendment; and that 
in any event the alleged agreement of 1982 was a forged 
and fabricated document, hence, on basis of such D 
document, the proposed amendment could not be 
allowed. Trial Court allowed the amendment application, 
permitting the defendant-appellant to incorporate the 
proposed amendments in the written statement on 
payment of cost of Rs.3000/-. High Court set aside the 
order passed by Trial Court. 
E 
The question which arose for consideration in the 
present appeal is whether the application of defendant-
appellant under Order VI Rule 17 for amendment of written 
statement was bona fide and sustainable. 
Dismissing the appeal, the Court 
HELD:1.1. Rule 17, Order VI was omitted by the Code 
F 
of Civil Procedure (Amendment) Act, 1999. However, 
before the enforcement of the Code of Civil Procedure G 
(Amendment) Act, 1999, the original r.ule was substituted 
and restored with an additional proviso. The proviso limits 
the power to allow amendment after the commencement 
of trial but grants discretion to the court to allow 
amendment if it feels that the party could not have raised 
H 
~I
750 
SUPREME COURT REPORTS 
[2008] 4 S.C.R. y
A the matter before the commencement of trial inspite of due 
• 
.! 
diligence. The new proviso lays down that no application 
for amendment shall be allowed after the commencement 
of trial, unless the court comes to the conclusion that 
inspite of due diligence, the party could not have raised 
B the matter before the commencement of trial. But whether 
a party has acted with due diligence or not would depend 
upon the facts and circumstances of each case. This 
would, to some extent, limit the scope of amendment to 
pleadings, but would still vest enough powers in Courts 
c to deal with the unforeseen situations whenever they 
arise. [Paras 8, 9] [755-D, G; 756-A, E, F] 
1.2. Though first part of Rule 17 of Order VI makes it 
clear that amendment of pleadings is permitted at any 
stage of the proceeding, the proviso imposes certain 
D restrictions. 

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