The Proviso to Order VI Rule 17 CPC: A Paradigm Shift in Amendment of Pleadings Post Trial Commencement in India

The Proviso to Order VI Rule 17 CPC: A Paradigm Shift in Amendment of Pleadings Post Trial Commencement in India

Introduction

The amendment of pleadings is a critical aspect of civil procedure, enabling parties to refine their claims and defences to ensure that the real questions in controversy are adjudicated. Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) empowers courts to allow such amendments. However, the introduction of a proviso to this rule by the Code of Civil Procedure (Amendment) Act, 2002, marked a significant jurisprudential shift, particularly concerning amendments sought after the commencement of trial. This proviso mandates that "Provided that no application for 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." This article undertakes a comprehensive analysis of this proviso, examining its legislative intent, judicial interpretation, and impact on civil litigation in India, drawing upon key precedents and statutory principles.

Legislative Genesis and Object of the Proviso

The journey of Order VI Rule 17 has seen legislative vicissitudes. It was briefly omitted by the CPC (Amendment) Act, 1999, but swiftly restored by the CPC (Amendment) Act, 2002, albeit with the crucial addition of the proviso. The primary legislative intent behind this proviso was to curb the dilatory tactics often employed by litigants through belated amendment applications, thereby expediting the trial process.[1]

The Supreme Court, in Salem Advocate Bar Association, T.N v. Union Of India[2], while upholding the constitutional validity of the 2002 amendments, including the proviso to Order VI Rule 17, observed that its object is to prevent frivolous applications filed to delay the trial. The Court clarified that the proviso curtails the absolute discretion to allow amendments at any stage, mandating that if an application is filed after the trial commences, the party must demonstrate that despite due diligence, such an amendment could not have been sought earlier. This sentiment was echoed in Ramzani And 5 Others v. Toni Agarwal And Another[3], where the Allahabad High Court noted that "the reason for adding proviso is to curtail delay and expedite hearing of cases." Similarly, the Himachal Pradesh High Court in Jeet Ram Kishore And Others v. Sunder Singh[4] emphasized that the proviso was inserted to curtail delays once the trial had commenced, and ignoring it would render the legislative intent futile, stating, "Thus, the very purpose of inserting the proviso would be defeated."

Deconstructing the Proviso: Key Elements

The application of the proviso hinges on two critical phrases: "after the trial has commenced" and "in spite of due diligence."

1. "After the trial has commenced"

The determination of when a trial "commences" is crucial for invoking the proviso. The Supreme Court in Vidyabai And Others v. Padmalatha And Another[5] provided significant clarity, holding that the trial is deemed to have commenced when issues are framed and the case is set down for recording of evidence. More specifically, the Court indicated that the filing of an affidavit in lieu of examination-in-chief of a witness would mark the commencement of the trial. This interpretation was also noted in Om Paul Petitioner v. Kanwar Randeep Singh[6], which referenced Vidyabai and Union of India v. Major-General Madan Lal Yadav for the definition of "trial" and "commence". The Andhra Pradesh High Court in Ramoji Rao And Another v. M.A.E Kumar Krishan Varma And Another[7] considered that posting the suit for trial after the framing of issues amounts to the commencement of trial.

However, in Mohinder Kumar Mehra v. Roop Rani Mehra & Ors. S[8], the Supreme Court adopted a slightly more flexible stance, permitting an amendment where it found that the trial had not "conclusively commenced" prior to the application and no prejudice was shown to the respondents. This suggests that a hyper-technical view of commencement might not always prevail if the circumstances warrant a different approach, especially if the evidence-leading stage has not effectively begun.

2. "In spite of due diligence"

The concept of "due diligence" is the cornerstone of the proviso. It casts a significant onus on the party seeking amendment after trial commencement to prove that they acted with reasonable care and attention and that the proposed amendment could not have been raised earlier despite such efforts. The Supreme Court in J. Samuel And Others v. Gattu Mahesh And Others[9] elaborated on this, stating:

"Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief."
In this case, a plea of "typographical error" was found insufficient to satisfy the due diligence requirement for a belated amendment seeking to incorporate mandatory pleadings under Section 16(c) of the Specific Relief Act, 1963.

The judiciary has consistently emphasized a strict interpretation of this requirement. In Chander Kanta Bansal v. Rajinder Singh Anand[10], the Supreme Court upheld the High Court's rejection of an amendment sought after 18 years, citing undue delay and lack of due diligence. The Court stressed that the power to amend, though liberal, must be balanced against preventing abuse of process. Similarly, the Patna High Court in Sayed Hasibuddin v. Syed Md. Akram Hussain And Others[11] held that the onus is squarely on the party seeking amendment to satisfy the court regarding due diligence, and amendments are not to be allowed merely because they are clarificatory if this test is not met post-trial commencement. The court observed, "The onus is now on the parties seeking the amendment to satisfy the Court that in spite of due diligence, the party could not have raised the matter before the commencement of the trial."

Judicial Interpretation and Application of the Proviso

The proviso has fundamentally altered the landscape of pleading amendments. While the general principle remains that amendments should be allowed if necessary for determining the real questions in controversy[12], the proviso acts as a stringent gatekeeper once the trial has begun.

Shift from Unfettered Discretion

Prior to the 2002 amendment, courts generally adopted a liberal approach towards amendments at any stage, as seen in cases like M/S Ganesh Trading Co. v. Moji Ram[13] (cited in Rajesh Kumar Aggarwal) and principles laid down by Lord Bowen in Crooper v. Smith[14] (referenced in In Re Shyamal Mitra Mustafi[15] and Revajeetu Builders And Developers v. Narayanaswamy And Sons And Others[16]). The primary considerations were whether the amendment was necessary for justice and whether any prejudice to the other side could be compensated by costs.

The proviso, however, introduces a condition precedent: the demonstration of due diligence for amendments sought post-trial commencement. As observed by the Madras High Court in Jeya v. Sundaram Iyyar[17], trial courts must specifically address the proviso and determine if the party falls within its exception, rather than relying solely on pre-proviso rulings that considered only the main part of Order VI Rule 17. The court noted the trial judge's error in not discussing the proviso or its applicability.

Factors Guiding Discretion under the Proviso's Shadow

Even when an application for amendment is considered, especially if the "due diligence" test is argued, courts often refer to a set of guiding principles. The Supreme Court in Revajeetu Builders And Developers v. Narayanaswamy And Sons And Others[16], while dealing with an amendment that sought to change the nature of the suit, outlined several factors:

  • Whether the amendment is imperative for proper and effective adjudication.
  • Whether the application is bona fide or mala fide.
  • Whether the amendment causes prejudice that cannot be compensated by costs.
  • Whether refusing the amendment would lead to injustice or multiple litigations.
  • Whether the proposed amendment fundamentally changes the nature and character of the case.
  • As a general rule, whether a fresh suit on the amended claims would be barred by limitation.
These factors, while generally applicable to amendment applications, must now be viewed through the prism of the proviso if the trial has commenced. If due diligence is not established, the amendment is likely to be refused irrespective of some of these factors. For instance, in Revajeetu Builders itself, the amendment was disallowed as it significantly changed the nature of the suit and was sought after considerable delay. The Patna High Court in Sayed Hasibuddin[11] also rejected an amendment that changed the nature of the suit and failed the due diligence test.

Amendment of Written Statement v. Plaint

Historically, courts have been more liberal in allowing amendments to written statements than to plaints, as defendants are permitted to take inconsistent pleas. The Supreme Court in Baldev Singh And Others v. Manohar Singh And Another[18] reiterated this, stating that the rules of amendment are more liberal for written statements. In that case, the amendment was allowed as the trial had not commenced, thus the proviso was not a bar. However, the proviso to Order VI Rule 17 applies to "either party," meaning the due diligence requirement post-trial commencement is equally applicable to amendments sought by defendants in their written statements. The Madras High Court in Devendran & Another v. P.V. Palani[19], while acknowledging the liberal approach for written statements, also noted the embargo placed by the proviso.

Non-Applicability to Pleadings Filed Before 1st July 2002

It is important to note that the proviso does not have retrospective effect on pleadings filed before its enforcement date. Section 16(2)(b) of the Code of Civil Procedure (Amendment) Act, 2002, explicitly states that the amended provisions of Order VI Rule 17 shall not apply to any pleading filed before the commencement of Section 7 of the said Act (which introduced the proviso, effective from 1st July 2002). This was affirmed by the Supreme Court in State Bank Of Hyderabad v. Town Municipal Council[20] and followed by the Delhi High Court in Purchasing Management International & Anr. v. Rajat Pandhi & Anr.[21].

The "Due Diligence" Standard and Counsel's Negligence

A question sometimes arises whether a party can be penalized for the negligence of their counsel in not raising a matter earlier. While generally, a party should not suffer for counsel's bona fide mistake, the "due diligence" requirement under the proviso implies a responsibility on the party as well, often acting through counsel. In Purchasing Management International[21], the court, while noting that the proviso did not apply to the pre-2002 suit, also observed that a party cannot be made to suffer for alleged negligence or mistake by counsel. However, this must be balanced with the explicit statutory mandate of due diligence. If the lack of diligence is patent, attributing it solely to counsel might not always suffice to overcome the proviso's bar, especially in light of the Supreme Court's emphasis in Salem Advocate Bar Association[2] on preventing delays.

Interplay with Other Statutory Provisions

The proviso to Order VI Rule 17 can sometimes appear to conflict with other statutory provisions that mandate or liberally allow amendments. For example, the proviso to Section 22(2) of the Specific Relief Act, 1963, allows a plaintiff to amend the plaint to include a claim for possession in a suit for specific performance at any stage of the proceeding. The Bombay High Court in Lalchand v. Ramkrishna[22] considered a situation where an amendment for possession was sought after trial commencement without due diligence. The Court had to resolve the apparent conflict between the proviso to Order VI Rule 17 CPC and the proviso to Section 22(2) Specific Relief Act, noting that "If proviso to Rule 17 is to operate then, in the present case, the trial court did not have jurisdiction to allow the application for amendment; whereas if proviso to section 22(1) of the Specific Relief Act is to operate, then the court is mandated to allow the amendment". The resolution of such conflicts often depends on the principle that a special law prevails over a general law, or on harmonious construction, but the primary test of due diligence under Order VI Rule 17 remains a significant hurdle.

Conclusion

The proviso to Order VI Rule 17 of the CPC has undeniably reshaped the law on amendment of pleadings in India. It reflects a legislative commitment to ensuring speedier justice and preventing the misuse of procedural law for causing delays. While the overarching goal of procedure is to facilitate justice, the proviso introduces a necessary discipline, compelling parties to be diligent and thorough in their pleadings from the outset. The judiciary, by and large, has interpreted the proviso strictly, emphasizing the "due diligence" requirement as a mandatory prerequisite for allowing amendments after the trial has commenced.

This has led to a more cautious approach by litigants and their counsel, fostering greater preparedness at the initial stages of litigation. While the doors for genuine and necessary amendments are not entirely closed, they are certainly guarded by the stringent test of due diligence. The ultimate effect is a move towards a more efficient civil justice system, where the focus remains on the substantive rights of the parties, adjudicated without undue procedural protraction.

References

  1. See Legislative objects and reasons for the Code of Civil Procedure (Amendment) Act, 2002.
  2. Salem Advocate Bar Association, T.N v. Union Of India, (2005) 6 SCC 344.
  3. Ramzani And 5 Others v. Toni Agarwal And Another (Allahabad High Court, 2023) (as per provided text).
  4. Jeet Ram Kishore And Others v. Sunder Singh (Himachal Pradesh High Court, 2004) (Analysis based on the provided text excerpt).
  5. Vidyabai And Others v. Padmalatha And Another, (2009) 2 SCC 409.
  6. Om Paul Petitioner v. Kanwar Randeep Singh (Himachal Pradesh High Court, 2014) (Analysis based on the provided text excerpt).
  7. Ramoji Rao And Another v. M.A.E Kumar Krishan Varma And Another (Andhra Pradesh High Court, 2011) (Analysis based on the provided text excerpt).
  8. Mohinder Kumar Mehra v. Roop Rani Mehra & Ors. S, 2017 SCC OnLine SC 1451.
  9. J. Samuel And Others v. Gattu Mahesh And Others, (2012) 2 SCC 300.
  10. Chander Kanta Bansal v. Rajinder Singh Anand, (2008) 5 SCC 117.
  11. Sayed Hasibuddin v. Syed Md. Akram Hussain And Others (Patna High Court, 2006) (Analysis based on the provided text excerpt).
  12. Rajesh Kumar Aggarwal And Others v. K.K Modi And Others, (2006) 4 SCC 385.
  13. M/S Ganesh Trading Co. v. Moji Ram, (1978) 2 SCC 91.
  14. Crooper v. Smith, (1884) 26 Ch D 700.
  15. In Re Shyamal Mitra Mustafi (Calcutta High Court, 1988) (Analysis based on the provided text excerpt).
  16. Revajeetu Builders And Developers v. Narayanaswamy And Sons And Others, (2009) 10 SCC 84.
  17. Jeya v. Sundaram Iyyar (Madras High Court, 2005) (Analysis based on the provided text excerpt).
  18. Baldev Singh And Others v. Manohar Singh And Another, (2006) 6 SCC 498.
  19. Devendran & Another v. P.V. Palani (Madras High Court, 2016) (Analysis based on the provided text excerpt).
  20. State Bank Of Hyderabad v. Town Municipal Council, (2007) 1 SCC 765 (as cited in Purchasing Management International).
  21. Purchasing Management International & Anr. v. Rajat Pandhi & Anr. (Delhi High Court, 2009) (Analysis based on the provided text excerpt).
  22. Lalchand v. Ramkrishna (Bombay High Court, 2003) (Analysis based on the provided text excerpt).