VIDYABAI & ORS. versus PADMALATHA & ANR.

Citation: [2008] 17 S.C.R. 505 · Decided: 12-12-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

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

Judgment (excerpt)

t 
-t 
[2008] 17 S.C.R. 505 
VIDYABAI & ORS. 
v. 
PADMALATHA & ANR. 
(Civil Appeal No. 7251 of 2008) 
DECEMBER 12, 2008 
[S.B. SINHA AND CYRIAC JOSEPH, JJ.] 
Code of Civil Procedure: 
A 
B 
Or.6 r.17 and its proviso - Amendment of written 
statement, after issues framed and affidavits by way of C 
evidence filed by parties - Permissibility of - Held: On facts, 
not permissible - Filing of affidavit in lieu of examination-in-
chief of witness would amount to commencement of trial/ 
proceedings - Defendants failed to prove that inspite of due 
diligence, the parties could not raise the matter before o 
commencement of trial. 
The plaintiffs-appellants filed a suit for specific 
performance of an agreement of sale. A written statement 
was filed in April, 2004. The issues were already framed 
and parties filed their respective affidavits by way of E 
evidence. Dates were-also fixed for cross-examination of 
the witnesses. In November, 2006, defendants-
respondents filed an application for amendment of the 
written statement. The trial court dismissed the 
application holding that entirely new case was sought to 
F 
be made. 
The defendants filed writ petition before the High 
Court. High Court allowed the same holding that filing of 
affidavit Dy way of evidence itself is not a good ground 
to reject application seeking amendment of written 
statement. Hence the instant appeal. 
G. 
The question for consideration before this Court is 
whether pleadings can be directed to be amended after 
the hearing of a case begins. 
505 
H 
506 
SUPREME COURT REPO~TS 
[2008) 17 S.C.R. e 
A 
Allowing the appeal, the Court 
HELD:1.1. The court should ;allow amendments that 
would be necessary to determine the real question of the 
controversy between the p~rties but the same 
indisputably would be subject to the condition that no 
8 prejudice is caused to the other side. It is the 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 VI, 
c Rule 17 CPC 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, is found ,
1to be existing, the court 
will have no jurisdiction at all to allow the amendment of 
0 the plaint. [Paras 13 and 14) [5~ 5-D-F] 
1.2. The proviso to Order VI Rule 17 CPC is couched 
in a mandatory form. The court's jurisdiction to allow 
such an application is taken aY(ay unless the conditions 
precedent are satisfied, viz., it must come fo a conclusion 
E that inspite of due diligence, the parties could not raise 
the matter before the commencement of the trial. From the 
I 
order passed by the trial court, it is evident that the 
respondents had not been able to fulfill the said pre-
condition. The trial had commenced. The date on which 
-
I 
the issues were framed is the date of first hearing. 
F Provisions of the CPC envisage taking of various steps 
at different stages of the proceeding. Filing of an affidavit 
I 
in lieu of examination-in-chief of the witness would 
amount to 'commencement ofr proceeding'. [Paras 7 and · 
8) [510-E-~-H; 511-A-B] 
, 
I 
G 
Pradeep Singhvi and Another v. Heero Dhankani and 
Others (2004) 13 SCC 432, distinguished. 
I 
Union of India and Others rV. Major General Madan Lal 
Yadav (Retd.) (1996) 4 SCC 127; Ameer Trading Corpn. Ltd. 
v. Shapoorji Data Processing Ltfl. _(2004) 1 SCC 702; Kai/ash 
H v. Nanhku (2005) 4 SCC 480; Ajendraprasadji N. Pandeyand 
+ 
VIDYABAI & ORS. v. PADMALATHA & ANR. 
507 
Anr. v. Swami Keshavprakeshdasji N. and Others (2006) 12 
A 
SCC 1; Salem Advocate Bar Assn. v. Union of India (2005) 
~ 
6 SCC 344; Baldev Singh and Ors. v. Manohar Singh and 
Anr. (2006) 6 SCC 498; Rajesh Kumar Aggarwal and Others 
v. K.K. Modi and Others (2006) 4 SCC 385, referred to. 
1.3. It has not been found that the trial court B 
exceeded its jurisdiction in passing the order impugned 
b_efore it. It has ~lso not been found that any error of law. 
~ 
has been committed by it. The High Court did not deal 
~ 
with the contentions raised before it. It has not applied·. 
its mind on the jurisdictional issue. The impugned c 
judgment, therefore, cannot be sustained. [Para 16] [516-
A-B] 
Case Law Reference: 
(2004) 13 sec 432 
distinguished 
Para 13 
(1996) 4 sec 121 
referr

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