Burden on the person who seeks amendment after commencement of the trial to show that the amendment could not have been sought earlier

In T.V. Sasikala and Ors. Vs. C.P. Joseph, after commencement of the examination of witnesses in the suit, the Plaintiff filed an application (Exhibit P5) under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) for amendment of the plaint. The Defendants filed objection to application raising various contentions. The trial Court allowed application. The Defendants filed this appeal before the High Court of Kerala challenging the legality and propriety of the trial court order.

The High Court observed that the Trial Court has allowed the amendment desired by the Defendant in the appeal with a cryptic order where there is a need for speaking order with reasons and is liable to be set aside for that reason alone.

The High Court further observed that Order VI Rule 17 of the Code provides that, the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The proviso to this rule states that, no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso to Order VI Rule 17 of the Code, to some extent, curtails the absolute discretion of the court to allow amendment at any stage of the suit. If the application for amendment is filed after commencement of trial, it has to be shown that inspite of due diligence, such amendment could not have been sought earlier. When the application for amendment filed by a party to the suit is after commencement of trial, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso to Order VI Rule 17 of the Code.

Referring to various judgments, the High Court held that the trial in a suit commences on the date on which the affidavit in lieu of examination in chief of a party or his witness is filed for the purpose of recording evidence. The bar under the proviso to Order VI Rule 17 of the Code would be attracted to an application for amendment of pleadings filed after that date.

Referring to the judgment of the Supreme Court in Revanna v. Anjanamma, AIR 2019 SC 940, the court observed that the burden is on the person who seeks an amendment after commencement of the trial to show that inspite of due diligence, such an amendment could not have been sought earlier.

As all the above mentioned issues had not been considered by the trial court, the High Court remanded the application to the trial court for fresh consideration and disposal.