USHA DEVI versus RIJWAN AHAMD & ORS.

Citation: [2008] 1 S.C.R. 795 · Decided: 17-01-2008 · Supreme Court of India · Bench: G.P. MATHUR · Disposal: Case Allowed

Judgment (excerpt)

[2008) 1 S.C.R. 795 
+ 
USHA DEVI 
A 
\I. 
RIJWAN AHAMD & ORS. 
(C.A. No. 481 of 2008) 
JANUARY 17, 2008 
B 
~ 
(G.P. MATHUR AND AFTAB ALAM, JJ.) 
~ 
Code of Civil Procedure, 1908; 0. 6 r. 17: 
Amendment of pleading - Suit for issuance of permanent c 
injunction against respondent-Amendment petition correcting 
certain description of the property in the Schedule to plaint -
Rejected by trial Court - Challenge to - Dismissed by High 
Court - On appeal, Held: Wrong description of suit property 
pointedly brought up by defendants not only in written statement 
but also in course of proceedings of a Miscellaneous case -
D 
There was a lock of due diligence on the part of plaintiff-
appellant for not raising the discrepancy in the plaint inspite 
of settlement of relevant issues - In terms of proviso to 0. 6 
r. 17, amendment after commencement of trial is barred unless 
Court came to the conclusion that the party could not have E 
raised the matter inspite of due diligence before the 
commencement of trial -
Tl'fough refraining to make any 
pronouncement as to exactly when the trial can be said to have 
~ 
commenced, the Court held that the amendment was 
necessary for the purpose of bringing to the fore the real F 
question in controversy between the parties and refusal to 
permit the amendment would create complications at 
execution stage in case plaintiff succeeds in the suit - Hence, 
allowed - It is open to respondent to make corresponding 
amendment in the written statement, if so desired. 
G 
i 
Appellant filed a suit seeking permanent injunction 
against respondents-defendants restraining them from 
interfering with her rights over the suit property and 
further directing them not to build or demolish the building 
795 
H 
796 
SUPREME COURT REPORTS 
[2008] 1 S.C.R. 
A already existing on the suit land. The description of the 
suit premises was given in the Schedule to the plaint. The 
defendant-respondents raised objection to the description 
of the suit property as given in the Schedule. Later, the 
appellant-plaintiff filed a Misc. Petition under Order 39, Rule 
B 2(A) read with Section 151 C.P.C. In that proceeding, the 
husband of the plaintiff was examined as one of the 
witnesses, and he stuck to the stand that the disputed 
" 
property was correctly described in the plaint. However, 
)> 
later an amendment petition was filed by the plaintiff 
c stating that due to inadvertence the suit land was wrongly 
described in the Schedule to the plaint. The petition was 
rejected by the trial Court holding that the plaintiff inspite 
of due diligence could not have raised this discrepancy 
in the plaint after nearly 2 years of the settlement of the 
.. 
D issues and after witnesses have been examined on oath 
in a Misc. Case. Aggrieved by the order of the trial court, a 
writ petition was filed by the plaintiff, which was dismissed 
by the High Court. Hence the present appeal. 
Appellant contended that the proviso to rule would 
E come into play only after the commencement of trial and 
in this case the trial court was in error in rejecting the 
appellant's prayer invoking Jhe due diligence clause in 
the proviso; that neither the framing of issues nor the 
proceedings of Misc. case could be taken as commence-
F ment of trial; that the prayer for amendment was made at 
the pre-trial stage and, therefore, the prayer should have 
been allowed in terms of unamended r.17 of 0.6. 
Respondents submitted that the plaintiff-appellant 
had obtained interim injunction against the defendants 
G in regard to the property as described in the plaint and 
the proposed amendment made it manifest that the 
defendants were made to suffer injunction for a long time 
with regard to their own property; that on the plaintiffs 
own showing the suit in its present form was bound to 
H fail and the permission to amend the plaint would, 
t 
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USHA DEVI v. RIJWAN AHAMD & ORS. 
797 
therefore, amount to giving an undue advantage to him; A 
that the proposed amendment would not only change the 
suit property but would also change the cause of action 
and would thus render the suit not maintainable in any 
event; and that the prayer for amendment was made after 
the commencement of the trial. 
B 
Allowing the appeal, the Court 
HELD: 1.1 In its amended form, 0. 6 R. 17 ·of Civil 
Procedure Code carries a proviso that bars any 
amendment after the commencement of trial unless the C 
court came to the conclusion that inspite of due d

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