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Synopsis

The Supreme Court has on February 29, 2024 said "oversight" and "mistake" cannot be accepted as a ground to allow any amendment in the pleadings at the fag end of the trial especially when admittedly, the facts are in knowledge of the plaintiffs.

A bench of Justices C T Ravikumar and Rajesh Bindal set aside the Karnataka High Court's order which allowed a plea by plaintiffs for amendment of a plaint in their prayer, to declare a 2004 compromise as null and void. The matter arose out of a suit for partition of ancestral property.

The ground for amendment was taken as oversight and mistake. The trial court dismissed it.

During the pendency of the suit, an amendment was carried out by the plaintiffs to implead respondent No 4 in the suit who was the purchaser of a part of the suit property, which was allowed in 2006. 

In February 2010, an application was filed by them seeking amendment of the plaint. The reasons assigned to file the belated application seeking amendment of the plaint were that due to oversight and by mistake, as they failed to seek relief of declaration of the compromise decree being null and void and were unable to deposit the court fee. 

The bench, however, said, "Proviso to Order VI Rule 17 CPC provides 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". 

In the case in hand, the bench pointed out, this is not even the pleaded case before the trial court in the application for amendment that due diligence was there at the time of filing of the suit in not seeking relief prayed for by way of amendment. 

"All what was pleaded was oversight.The same cannot be accepted as a ground to allow any amendment in the pleadings at the fag end of the trial especially when admittedly the facts were in knowledge of the respondents No. 1 and 2/plaintiffs," the bench said.

The bench further noted initially, the suit was filed for partition and separate possession. By way of amendment, relief of declaration of the compromise decree being null and void was also sought, which would certainly change the nature of the suit, which may be impermissible, the court said.

"If the amendment is allowed in the case in hand, certainly prejudice will be caused to the appellant. This is one of the important factors to be seen at the time of consideration of any application for amendment of pleadings. Any right accrued to the opposite party cannot be taken away on account of delay in filing the application," the bench said.

The court further noted the compromise decree was passed on October 14, 2004 in which the plaintiffs were party. The application for amendment of the plaint was filed on February 08, 2010 i.e. 5 years and 03 months after, which is sought to be challenged by way of amendment.

The limitation for challenging any decree is three years (Reference can be made to Article 59 in Part-IV of the Schedule attached to the Limitation Act, 1963), it said.

"A fresh suit to challenge the same may not be maintainable. Meaning thereby, the relief sought by way of amendment was time barred. As with the passage of time, right had accrued in favour of the appellant with reference to challenge to the compromise decree, the same cannot be taken away. In case the amendment in the plaint is allowed, this will certainly cause prejudice to the appellant. What cannot be done directly, cannot be allowed to be done indirectly," the bench said.

The bench said even if on any ground the amendment could be permitted, still no relief could be claimed with reference to setting aside of the compromise decree as all the parties thereto were not before the court in the suit in question.

The court dismissed the application for amendment of the plaint with Rs one lakh as cost.