Whether court can allow amendment of plaint when case is fixed for deft evidence?

I have considered the reasons stated in the impugned 
order. In the  facts and circumstances, it appears that the 
plaintiff   had   obtained   information   in   respect   of   family 
history and she wanted to inform the trial Court about the 
material   facts   which   could   have   bearing   on   the   final 
decision as it may assist the trial Court to resolve the real 
controversy between the parties finally.  The contention on 
behalf of the writ petitioner that her name was suppressed 
earlier by her two step brothers and they were blamed for 

playing foul play. I think that, in such a case, in the larger 
interest of justice the trial Court may seek assistance when 
the   parties   are   ready   and   willing   to   disclose   entire   facts 
which may come to their knowledge subsequently so that 
the   larger   interest   of   justice   may   be   served   instead   of 
technically rejecting the application for amendment of the 
plaint. In such cases, to my mind, when the application for 

amendment is filed at a belated stage, the trial Judge can 
impose   just   and   appropriate   costs   so   as   to   adequately 
compensate   the   other   party   who   has   grievance   due   to 
belated amendment in the plaint.   Since in this case   the 
evidence of the defendant is not yet complete and the case 
is still at the stage of his cross­examination, I feel that  the 
ends of justice would be served if the plaintiff is allowed to 
amend the plaint, as prayed, by  introducing para 2­A in the 
plaint and thereafter, she shall furnish copy of the amended 
plaint to the defendant forthwith so as to give opportunity 
to the defendants to meet the contentions on merits of the 
suit by their additional Written Statement, if any.  The trial 
Court may give further opportunity to the plaintiff to prove 

additional facts stated in the amended plaint and also offer 
opportunity to the defendants to cross­examine the plaintiff 
in   respect   of   the   material   facts   introduced   latter   in   the 
course of the suit and then shall proceed further in the trial 
to record evidence on the defendants' side and decide the 
suit on merits according to law.  

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR

WRIT PETITION NO.1068 OF 2014
Smt. Shantabai wd/o. Natthuji Thakre,

// VERSUS //
Vasant s/o. Shyamraoji Wankhede,

      CORAM     :  A.P.BHANGALE,  J.

      DATE         :  25.6.2014. 
Citation;2014(6) ALLMR 852

Considered the nature of the impugned order passed 
by   the   learned   Civil   Judge  (Sr.Dn.),  Amravati   in   Regular 
Civil   Suit   No.98   of   2008   whereby   the   application   for 
amendment of the plaint preferred under Order VI, Rule 17 
of the Code of Civil Procedure was rejected. The said suit 
was a suit for declaration, permanent injunction, partition 
and   separate   possession   of   the   suit   property   filed   by   the 
writ   petitioner   (Original   plaintiff)   against   her   two   step 

brothers.     According   to   the   plaintiff,   she   claimed 
declaration in respect of her 1/3rd share in the ancestral 
property.   Her   father   Shamrao   died   in   or   about   the   year 
1991.     Shamrao   had   married   twice   during   his   life   time. 
From   the   first   wife,   the   petitioner   was   born   out   of   the 
wedlock;   while   from   the   second   wife,   sons   Vasanta   and 
Ramesh were born.   Thus, the writ petitioner is the elder 

daughter.     However,   it   is   alleged   that   her   rights   were 
suppressed   by   her   step   brothers   Vasant   and   Ramesh   and 
foul play was played by them so that she should not receive 
any share in the ancestral property, though she is entitled 
to claim it according to law.   According to the petitioner, 
despite   due   diligence,   some   material   facts,   which   are   of 
explanatory nature to assist the trial Court to resolve the 
controversy between the parties, were not brought to the 
notice of the plaintiff because of her application under the 
Right   to   Information   Act   and   therefore,   by   the   time   of 
decision   on   the   application  for   amendment   of   the  plaint, 
her   evidence   in   examination­in­chief   was   recorded  in   the 
trial Court as also her cross­examination and case was fixed 

for   cross­examination   of   DW­1   as,   according   to   1st 
defendant, he had filed affidavit of evidence. The learned 
trial Judge thought that the proviso to Order VI, Rule 17 of 
the Code of Civil Procedure would bar the application and 
therefore,   decided   to   reject   it   by   refusing   to   exercise 
discretion   to   grant   amendment   in   favour   of   the   plaintiff. 
The   learned   trial   Judge   thought   that   application   for 
amendment should not be allowed after commencement of 
trial in view of proviso to Order VI, Rule 17 of the Code of 
Civil Procedure.
3.
I have considered the reasons stated in the impugned 
order. In the  facts and circumstances, it appears that the 
plaintiff   had   obtained   information   in   respect   of   family 
history and she wanted to inform the trial Court about the 
material   facts   which   could   have   bearing   on   the   final 
decision as it may assist the trial Court to resolve the real 
controversy between the parties finally.  The contention on 
behalf of the writ petitioner that her name was suppressed 
earlier by her two step brothers and they were blamed for 

playing foul play. I think that, in such a case, in the larger 
interest of justice the trial Court may seek assistance when 
the   parties   are   ready   and   willing   to   disclose   entire   facts 
which may come to their knowledge subsequently so that 
the   larger   interest   of   justice   may   be   served   instead   of 
technically rejecting the application for amendment of the 
plaint. In such cases, to my mind, when the application for 

amendment is filed at a belated stage, the trial Judge can 
impose   just   and   appropriate   costs   so   as   to   adequately 
compensate   the   other   party   who   has   grievance   due   to 
belated amendment in the plaint.   Since in this case   the 
evidence of the defendant is not yet complete and the case 
is still at the stage of his cross­examination, I feel that  the 
ends of justice would be served if the plaintiff is allowed to 
amend the plaint, as prayed, by  introducing para 2­A in the 
plaint and thereafter, she shall furnish copy of the amended 
plaint to the defendant forthwith so as to give opportunity 
to the defendants to meet the contentions on merits of the 
suit by their additional Written Statement, if any.  The trial 
Court may give further opportunity to the plaintiff to prove 

additional facts stated in the amended plaint and also offer 
opportunity to the defendants to cross­examine the plaintiff 
in   respect   of   the   material   facts   introduced   latter   in   the 
course of the suit and then shall proceed further in the trial 
to record evidence on the defendants' side and decide the 
suit on merits according to law.  
For   all   the   reasons   afore­mentioned,   therefore,   the 

4.

impugned   order   is   set   aside.     Rule   is   made   absolute   in 
terms of prayer clauses (b) and ( c) of the petition subject 
to payment of cost in the sum of Rs.2,000/­ as a condition 
precedent   for   amendment   of   the   plaint   payable   by   the 
plaintiff to the defendants.  
  

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