J. SAMUEL AND OTHERS versus GATTU MAHESH AND OTHERS

Citation: [2012] 1 S.C.R. 295 · Decided: 16-01-2012 · Supreme Court of India · Bench: P. SATHASIVAM · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2012] 1 S.C.R. 295 
J. SAMUEL AND OTHERS 
v. 
GATTU MAHESH AND OTHERS 
(Civil Appeal No. 561 of 2012) 
JANUARY 16, 2012 
[P. SATHASIVAM AND J. CHELAMESWAR, JJ.] 
Code of Civil Procedure, 1908: 
A 
B 
Or. VI r. 17 - Amendment of pleadings - Suit for specific c 
performance of contract - Application filed under Or. VI r. 17 
seeking amendment of the plaint to incorporate specific 
pleading in compliance of s. 16(c) of the Specific Relief Act 
and Form 47, Appendix 'A' CPC on the ground that the same 
was missed due to typographical error - Application filed by 0 
respondents for amendment of plaint after conclusion of the 
trial and after the matter was reserved for orders of the trial 
court - Trial court dismissed the application whereas the High 
Court allowed the respondents to amend the plaint as prayed 
for - On appeal, held: Proviso inserted in r. 17 clearly states 
that no amendment shall be allowed after the trial has 
E 
commenced except when the court comes to the conclusion 
that inspite of due diligence, the party could not have raised 
the matter before the commencement of the trial - Act of 
neglecting to perform an action which one has an obligation 
to do cannot be called as a typographical error - On facts, 
F 
there is a clear lack of 'due diligence' and the mistake 
committed does not come within the preview of a 
typographical error - Had the person who prepared the plaint, 
signed and verified the plaint showed some attention, the 
omission could have been noticed and rectified there itself -
G 
In such circumstances, it cannot be construed that due 
diligence was adhered to and in any event, omission of 
mandatory requirement running into 3 to 4 sentences cannot 
295 
H 
296 
SUPREME COURT REPORTS 
[2012] 1 S.C.R. 
A be a typographical error - Thus, the order passed by the High 
Court is set aside. 
Or. VI r. 17 - Amendment of pleadings - Court's discretion 
to grant permission for - Held: Lies on two conditions that no 
8 
injustice must be done to the other side and the amendment 
must be necessary for the purpose of determining the real 
question in controversy between the parties - However, to 
balance the interests of the parties in pursuit of doing justice, 
the proviso has been added which clearly states that no 
C 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. 
Term 'due diligence' - Meaning and usage of .. Held: Due 
D diligence is the idea that reasonable investigation is 
necessary before certain kinds of relief are requested - ft is 
specifically used in the Code to provide a test for determining 
whether to exercise the discretion in situations of requested 
amendment after the commencement of trial - The term 
E determines the scope of a party's constructive knowledge, 
claim and is very critical to the outcome of the suit - Party 
requesting a relief stemming out of a claim is required to 
exercise due diligence and is a requirement which cannot be 
dispensed with . 
· 
F 
Term 'typographical error' - Meaning of - Held: Is defined 
as a mistake made in the printed/typed material during a 
printing/typing process - Term includes errors due to 
mechanical failure or slips of the hand or finger, but usually 
excludes errors of ignorance - Act of neglecting to perform an 
G action which one has an obligation to do cannot be called as 
a typographical error. 
Specific Relief Act, 1963 - s. 16(c) - Personal bars to 
relief - Enforcement of specific performance of contract -
H Essential ingredient of s. 16(c) - Held: Specific averments 
J. SAMUEL AND ORS v. GATIU MAHESH AND ORS. 297 
should be made in the plaint that he has performed and has A 
always been willing to perform the essential terms of the Act 
which have to be performed by him - In the absence thereof, 
the decree for specific performance cannot be granted. 
Respondents filed a suit for specific performance of B 
the contract for sale. The trial of the suit commenced, the 
parties adduced evidence, their arguments were heard 
and completed and the matter was posted for judgment. 
Subsequently, the respondents filed an application under 
Order VI, Rule 17 CPC seeking amendment of the plaint 
to incorporate specific pleading in compliance of Section 
C 
16(c) of the Specific Relief Act and Form 47, Appendix 'A' 
on the ground that the same was missed due to 
typogra

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