Holding

The amendment of the written statement was not permissible because the trial had commenced when issues were framed and affidavits filed, invoking the proviso to Order VI Rule 17.

Summary

The plaintiffs filed a suit for specific performance of a sale agreement and filed a written statement in April 2004. After issues were framed and affidavits were filed as evidence, the defendants sought to amend their written statement in November 2006. The trial court dismissed the amendment, holding it introduced a new case, but the High Court allowed it, reasoning that filing an affidavit was not a sufficient ground to reject the amendment. The Supreme Court examined whether the trial had already commenced, interpreting the proviso to Order VI Rule 17 of the CPC (added by the 2002 amendment) which bars amendment after trial commencement unless the party, despite due diligence, could not have raised the matter earlier. The Court held that the trial began when issues were framed and affidavits filed, so the proviso applied and the amendment was impermissible. Consequently, the appeal was allowed and the trial court’s order dismissing the amendment was set aside.

Issues considered

Whether pleadings can be amended after the trial has commenced under Order VI Rule 17 of the CPC as amended by the 2002 Act.
Whether the filing of affidavits and framing of issues constitute the commencement of trial.

Legislation cited

Civil Procedure Code (Amendment) Act, 2002
Code of Civil Procedure, 1908s. Order VI Rule 17

Subjects

amendment of pleadingsOrder VI Rule 17Civil Procedure Codetrial commencementaffidavit as evidencejurisdictionspecific performance

Judgment

[2008] 17 S.C.R. 505

VIDYABAI & ORS. A
v.
PADMALATHA & ANR.
(Civil Appeal No. 7251 of 2008)
DECEMBER 12, 2008
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]

Code of Civil Procedure:
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.
t 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
-t 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 ,to be existing, the court
1

will have no jurisdiction at all to allow the amendment of
the plaint. [Paras 13 and 14) [5~ 5-D-F]
0
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
that inspite of due diligence, the parties could not raise
E 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.
- I
The date on which
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.
I
Filing of an affidavit
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 referred to Para 9 D
(2004)1 sec 1oz referred to Para 11
(2005) 4 sec 480 referred to Para 11
... ~
(2oos) 12 sec 1
c2oos) 6 sec 344
referred to
referred to
Para 11
Para 13
c2oos) 6 sec 498 referred to Para 12 E
(2006) 4 sec 385 referred to Para 12
CIVIL APPEUATE JURISDICTION: Civil Appeal No.
7251 of 2008.
From the Judgment and final Order dated 24.10.2007 of F
the High Court of Karnataka at Bangalore in Writ Appeal No.
t 14103 of 2007 (GM-CPC).
'Iii
S.K. Kulkarni, M. Gireesh Kumar and Vijay Kumar for the
Appellants.
Kiran Suri, S.J. Amith and Aparna Bhat tor the G·.
Respondents.
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
2. Wh_E?ther pleadings can be directed to be amended
H
508 SUPREME COURT REPORTS [2008] 17 S.C.R. e
A after the hearing of a case begins is the question involved in
this appeal which arises out of a judg_ment and order dated
24.10.2007 passed by the Higti Court of Karnataka at y
Bangalore in Writ Petition No. 14013,of 2007.
3. On or about 16.12.2003, the plaintiffs - appellants filed
B a suit for specific performance of .an agreement of sale.
According to the plaintiffs, one Prashant Sooji (since
deceased) executed an agreement of sale on 15.01.2001 in
respect of the suit property for a sum of Rs. 21 lakhs. ,........
Defendants - .Respondents are the predecessors in interest of _,,.._
c the said Prashant Sooji.
A written statement was filed on 17.04.2004. An
application for amendment of the written statement was filed
on 8.11.2006. In between the period 17.04.2004 and 8.11.2006,
however, indisputably issues were framed and parties filed their
D respective affidavits by way of evide.hce. Dates had been fixed
for cross-examination of the said witnesses.
On or about 8.11.2006, an application had been filed
under Order VI Rule 17 of the Code of Civil Procedure (for short ,t.
"the Code"), which was marked as IA 9 of 2006, seeking "'""
amendment to the written statement. On the same day, another
E
application, which was marked as IA 10 of 2006, had also been
filed purported to be under Order VIII Rule 1A of the Code for
production of additional documents.
By reason of an order dated 18.07.2007, the learned
Principal Civil Judge (Sr. Dn.),' Hubli dismissed the said
F
applications holding that an entir~ly new case is sought to be
made out. The contention that they had no knowledge of the 1'·
facts stated therein and the resp9ndents could not gather the
materials and information necessary for drafting proper written ""'
statement earlier was rejected, ~tating:
G "... However, this contention cannot be accepted. Because
according to proposed amepdment sought by defendants
at para 3(a) will is dated 18.3.94. Therefore, naturally
same would have been in the knowledge of defendants +-
right from the date and moreover when they say that
H mother-in-law of defendant No. 1 is also necessary party
VIDYABAI & ORS. v. PADMALATHA & ANR. 509
[S.B. SINHA, J.]

and she is also got right and interest in the suit property A
and that she is alive, then through, her defendants would
have known about will right from beginning and hence it ·
cannot be said that defendant No. 1 required time to gather
information regarding will and furthE?r as details of will
would have been within the knowledge of defendants and/ B
or could have been given by mother-in-law of defendant
No. 1 i.e. Subhadrabai, then it was not necessary for
defendant No. 1 to have any social activities or have
knowledge of business to know about the will and hence
proposed amendment regarding will cannot said to be not
within the knowledge of defendants at the time of filing of C
written statement. Further regarding husband of defendant
No. 1 being addicted to bad vices like womanizing,
drinking etc. again this would have been within the personal
knowledge of defendant No. 1 as she is wife of deceased
Prashant against whom whose allegations are made and D
this would have been in here knowledge right from the
beginning and to have said knowledge again she need not
have any knowledge of business or social activities and
thus she also did not require any time to gather that the
information which are well within her own knowledge ... " E
4. A writ petition was filed thereagainst. By reason of the ·
impugned judgment, the High Court noticed the defence of the
appellants in the following terms:
"There is no retracting of statement made in written
t statement already filed by the defendants". F
~ It, however, took into consideration the fact that the said
IAs were filed after the affidavit of evidence had been filed by
the plaintiffs - appellants. Despite noticing the proviso
appended to Order VI, Rule 17 of the Code, it was held;
" ... According to Order 6 Rule 17, an amendment G
application. can be filed at any stage of the proceeding.
Filing of affidavit by way of evidence itself is not a good
ground to reject the application filed seeking amendment
of written statement. It is not out of place to mention that
the parties must be allowed to plea. Such.a valuable right H
---
510 SUPREME COURT REPORTS [2008] 17 S.C.R.

A cannot be curtailed in the absence of good ground."
I.A. 10 was also directed to be e1llowed.
5. Mr. S.K. Kulkarni, learned counsel appearing on behalf
of the appellants, would submit that in view of the proviso
appended to Order VI Rule 17 of the Code, the High Court
B committed a serious illegality in passing the impugned
judgment.
I

6. Ms. Kiran Suri, learned counsel appearing on behalf of
the respondents, on the other hand, would contend that the
proviso appended to Order VI Rule 17 of the Code is not
C attracted in the instant case as by ~eason of the amendment
to the written statement, no new case has been made out. It
was submitted that 'leave' to amend 'the written statement was
filed for the purpose of elaborating the defence which had
already been taken by the defendants and in that view of the
D matter, this Court sh9uld not exercise its jurisdiction under
Article 136 of the Constitution of India particularly when it is well-
known that an application for amendment of written statement
1

should be dealt with liberally. .
7. By reason of the Civil Procedure Code (Amendment)
E Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted
a proviso to Order VI Rule 17 of ,the Code, which reads as
under:
"Provided that no applicatio11 for amendment shall be

F
allowed after the trial_ has commenced, unless the court
comes to tt}e conclusion that in spite of due diligence, the
party could not have raised the matter before the
.,
commencement of trial." '
It is couched in a mandatory form. The court's jurisdiction
to allow such an application is takeh away unless the conditions
G precedent therefor are satisfie~. viz., it must come to a
conclusion that in spite of due diligence the parties could not
~ave raised the matter before the commencement of the trial.
I '

8. From the order passed by1 the learned Trial Judge, it is
evident that the respondents had not been able to fulfill the said
H pre-condition.
VIDYABAI &ORS. v. PADMALATHA&ANR. 511
[S.B. SINHA, J.]

The question, therefore, which arises for consideration is A
as to whether the trial had commenced or not. .In our opinion, it
did. The date on which the issues are framed is the date of first
hearing. Provisions of the Code of Civil Procedure envisage
taking of various steps at different stages of the proceeding.
Filing of an affidavit in lieu of examination in chief of the witness, 8
in our opinion, would amount to 'commencement of proceeding'.
9. Although in a different context, a Three-Judge Bench of
this Court in Union of India and Others v. Major General Madan
Lal Yadav (Retd.) [(1996) 4 SCC 127] took note of the
dictionary meaning of the terms "trial" and "commence" to c
opine:
19. It would, therefore, be clear that trial means act of
proving or judicial examination or determination of the
issues including its own jurisdiction or authority in
accordance with law or adjudging guilt or innocence of the 0
accused including all steps necessary thereto. The trial
commences with the performance of the first act or steps
necessary or essential to proceed with the trial.
The High Court, as noticed hereinbefore, opined that filing
of an affidavit itself would not mean that the trial has E
commenced.
10. Order XVIII, Rule 4(1) of the Code reads as under:
"4. Recording of evidence
(1) In every case, the examination-in-chief of a witness shall
be on affidavit and copies thereof shall be supplied to the F
T opposite party by the party who calls him for evidence:
Provided that where documents are filed and the parties
rely upon the documents, the proof and admissibility of
such documents which are filed along with affidavit shall
be subject to the orders of the Court." G
11. This aspect of the matter has been considered by this
Court in Ameer Trading Corpn. Ltd. v. Shapoorji Data
Processing Ltd. [(2004) 1 SCC 702) in the following terms:
"15. The examination of a witness would include evidence- H

I
512 SUPREME COURT REPORTS [2008] 17 S.C.R.

A in-chief, cross-examination or re-examination. Rule 4 of
Order 18 speaks of examination-in-chief. The unamended ·
rule provided for the manner in which "evidence" is to be·
taken. Such examination-in-chief of a witness in every case
shall be on affidavit.
'
B · 16. The aforementioned provision has been m~ae to
curtail the time taken by the court in examining a witness-
in-chief. Sub-rule (2) of Rule 4 of Order 18 of the Code of
Civil Procedure provides for cross-examination and re-
examination of a witness which shall be taken by the court
c or the Commissioner appointed by it." ,-
In Kai/ash v. Nanhku [(2005) 4 SCC 480], this Court held:
"13. At this point the question arises: when does the trial
of an election petition commence or what is the meaning
to be assigned to the word "trial" in the context of an
D election petition? In a civil suit, the trial begins when issues
are framed and the case is set down for recording of
evidence. All the proceedings before that stage are
treated as proceedings preliminary to trial or for making
the case ready for trial. As held by this Court in several
E decided cases, this general rule is not applicable to the
trial of election petitions as in the case of election petitions,
all the proceedings commencing with the presentation of
the election petition and up to the date of decision therein
are included within the meaning of the word "trial"."
F We may notice that in Ajendraprasadji N. Pandey and
Another v. Swami Keshavprakeshdasji N. and Others [(2006)
12 SCC 1], this Court noticed the decision of this Court in
Kai/ash (supra) to hold:
"35. By Act 46of1999, there was a sweeping amendment
by which Rules 17 and 18 were wholly omitted so that an
G
amendment itself was not permissible, although
sometimes effort was made to rely on Section 148 for
extension of time for any purpose.
36. Ultimately, to strike a balance the legislature applied
its mind and reintroduced Rule 17 by Act 22 of 2002 w.e.f.
H
VIDYABAI & ORS. v. PADMALATHA & ANR. 513
r' [S.S. SINHA, J.]

1-7-2002. It had a provision permitting amendment in the A
~~ first part which said that the court may at any stage permit
t amendment as described therein. But it also had a total
bar introduced by a proviso which prevented any
application for amendment to be allowed after the trial had
commenced unless the court came to the conclusion that 8
in spite of due diligence the party could not have raised
the matter before the commencement of the trial. It is this
:.. proviso which falls for consideration."
This Court also noticed Salem Advocate Bar Assn. v.
Union of India [(2005) 6 SCC 344] to hold: c

.
-l
__.,.
"41. We have carefully considered the submissions made
by the respective Senior Counsel appearing for the
respective parties. We have also carefully perused the
pleadings, annexures, various orders passed by the courts
below, the High Court and of this Court. In the counter- D
affidavit filed by Respondent 1, various dates of hearing
).. with reference to the proceedings taken before the Court
~~

has been elaborately spelt out which in our opinion, would
show that the appellant is precluded by the proviso to rule
in question from seeking relief by asking for amendment
E
of his pleadings.
42. It is to be noted that the provisions of Order 6 Rule 17
CPC have been substantially amended by the CPC
(Amendment) Act, 2002.
43. Under the proviso no application for amendment shall F
y be allowed after the trial has commenced, unless in spite
"" of due diligence, the matter could not be raised before the
comm_~ncement of trial. It is submitted, that after the trial
of the case' has commenced, no application of pleading
shall be allowed unless the above requirement is satisfied.
G
The amended Order 6 Rule 17 was due to the
recommendation of the Law Commission since Order (sic
-+ Rule) 17 ~ as it existed prior to the amendment, was
invoked by parties interested in delaying the trial. That to
shorten the litigation and speed up disposal of suits,
amendment was made by the amending Act, 1999, H
514 SUPREME COURT REPORTS [2008] 17 S.C.R.

A deleting Rule 17 from the Code. This evoked much
controversy/hesitation all over the country and also leading ~~
•
to boycott of courts and, therefore, by the Civil Procedure 't. ,.
Code (Amendment) Act, 2002, provision has been
restored by recognising the power of the court to grant
B amendment, however, with certain limitation which is
contained in the new proviso added to the rule. The details
furnished below will go to show as to how the facts of the
_....___ ..,;
present case show that the matters which are sought to
be raised by way of amendment by the appellants were
well within their knowledge on their court case, and
c manifests the absence of due diligence on the part of the ,;-

appellants disentitling them to relief." '
~
The ratio in Kai/ash (supra) was reiterated stating that the -~
trial is deemed to commence when the issues are settled and ~

the case is set down for recording of evidence.
D
12. Reliance, however, has been placed by Ms. Suri on
Baldev Singh and Others v. Manohar Singh and ·Another -.,l ,....,L
[(2006) 6 sec 498], wherein it was opined: '"
"17. Before we part with this order, we may also notice that
~
E proviso to Order 6 Rule 17 CPC provides that amendment )..
of pleadings shall not be allowed when the trial of the suit
has already commenced. For this reason, we have
,L
I

?-
examined the records and find that, in fact, the trial has not '
yet commenced. It appears from the records that the '
~
parties have yet to file their documentary evidence in the
F suit. From the record, it also appears that the suit was not ... -!
on the verge of conclusion as found by the High Court and ;.,..
-
)-
I

\--
the trial court. That apart, commencement of trial as used
!
in proviso to Order 6 Rule 17 in the Code of Civil ~

Procedure must be understood in the limited sense as "
G meaning the final hearing of the suit, examination of
witnesses, filing of documents and addressing of
arguments. As noted hereinbefore, parties are yet to file _,_
their documents, we do not find any reason to reject the
'"'
application for amendment of the written statement in view
H of proviso to Order 6 Rule 17 CPC which confers wide
I

--\
lilt
~ VIDYABAI & ORS. v. PADMALATHA & ANR. 515
[S.B. SINHA, J.]

power and unfettered discretion to the court to allow an A
--1
amendment of the written statement at any stage of the
proceedings.
It is not an authority for the proposition that the trial would
not deemed to have commenced on the date of first hearing.
In that case, as noticed hereinbefore, the documents were yet B
to be ·filed and, therefore, it was held that the trial did not
- ......._
commence.
13. Reliance has also been placed by Ms. Suri on Pradeep
Singhvi and Another v. Heero Ohankani and Others [(2004)
13 SCC 432]. Therein, the suit was filed in the year 1995 and, c
therefore, the proviso appended to Order VI, Rule 17 of the
Code of Civil Procedure had no application.
Reliance has also been placed by Ms. Suri on Rajesh
Kumar Aggarwal and Others v. K.K. Modi and Others [(2006)
4 SCC 385]. No doubt, as has been held by this Court therein D
A
that the court should allow amendments that would be necessary
'.)< to determine the real question of the controversy between the
parties but the same indisputably would be subject to the
condition that no prejudice is caused to the other side.
14. It is the primal duty of the court to decide as to whether E
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, Rule 17 of the
¥ Code restricts the power of the court. It puts an embargo on F
exercise of its jurisdiction. The court's jurisdiction, in a case of
*" this nature is limited. Thus, unless the jurisdictional fact, as
envisaged therein, is found to be existing, the court will have
no jurisdiction at all to allow the amendment of the plaint.
15. In Sa/em Advocate Bar Assn (supra}, this Court has G
upheld the validity of the said proviso. In any event, the
4- constitutionality of the said provision is not in question before
us nor we in this appeal are required to go into the said
question.
16. Furthermore, the judgment cf the High Court does not H
516 SUPREME .COURT .REPORTS [2008] 17 S.C.R.

.A satisfy the test of judic.ial review., .It ~a~_r10.t: b@ef1 ~OUf)9,.t~~at the
learned Trial Judge. exceeded its jurisdiqtion. in pas~ing the
order impugned before it. It has also not beer found th~t any
error of law has been commjtted by it. .
' ,. ., 1 · . v· \{.1 •• ·~

The High. Courtdid ~ot deal With ~h~. <?~ll!~Qtign~rai~~~
·B before it. It has not-applied its ~mind_ on th~,jµrisgictionaL~s~u~.
The impµgned.juqgr)1e.nt, theref~re,,_cannq~.~e ~u.~taifl~d. ~hich
is set aside accordingly.
17. However,. we may observe. that .the que~tion as to
~ - ,_ , .i ......... • . - •

whether th.e do_curn~nt~. should haye b,ee!l.·'?9lled for qr no.t ~Y
.c the court wjthout there_. b~ing t_he. a~mendf?~, written state~ent
before it m?Y· be considered afre~~:, .
18. The appeal is allowed. However, in the facts and
circumstances o(the,~ase, there shall .. be no_prder ?St<? costs.
D.G. 1 Appeal allowed .
. -. t

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