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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.19977 OF 2017

(Arising out of SLP (C) No. 26695/2017) MOHINDER KUMAR MEHRA            …APPELLANT

VERSUS ROOP RANI MEHRA & ORS.   …RESPONDENTS

J U D G M E N T ASHOK BHUSHAN, J.

1. This appeal has been filed against the judgment of

Delhi High Court dated 02.08.2017 by which judgment,

the Writ Petition filed by the appellant challenging

the order of Additional District Judge dismissing the

application of the plaintiff under Order VI Rule 17

of the Civil Procedure Code (hereinafter referred to

as  “C.P.C.”)  has  been  dismissed.   Facts  in  brief

necessary to be noted for deciding the appeal are:-

The  appellant  and  respondent  No.5  are  sons  of

respondent No.1.  Respondent Nos. 2, 3  and 4 are

wife,  son  and  daughter  of  another  brother  of

appellant.  The  appellant’s  father  Late  Shri  O.P.

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Mehra alongwith his wife and three minor sons came to

Delhi from Lahore after Partition. Shri O.P. Mehra

died in 1951.  The respondent No.1 and her sons were

held  entitled  to  compensation  under  Order  of

Settlement Commissioner, New Delhi dated 14.08.1956.

The respondent No. 1 was declared as highest bidder

in  a  public  auction  for  a  House  No.  D-4,  Lajpat

Nagar, area measuring 300 sq. yds. which amount was

adjusted from the claim to which the respondent No.1

and her sons were held entitled.

Another property was also allotted in the name of

respondent No.1 of area measuring 200 sq. yds. at

G-11,  Nizamuddin,  New  Delhi.   The  property  G-11,

Nizamuddin was sold by respondent No.1 in the year

2000.  On 04.11.2009, the appellant filed a Suit No.

2082  of  2009  against  the  respondents  seeking

partition of the suit property described in Appendix

A.  In Appendix A, only property mentioned was Plot

No.D-4, Lajpat Nagar, Part-II, New Delhi.  

Written statement was filed by the respondent and

on  17.05.2010,  issues  were  framed  by  the  Court.

10.08.2010 was fixed for recording the evidence of

the plaintiff.  The plaintiff prayed for time for

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producing evidence. On 17.01.2011, plaintiff filed an

application  under  Order  VI  Rule  17  praying  for

amendment  of  the  plaint.   By  the  application

plaintiff  sought  to  add  certain  pleadings  and  a

prayer claiming share in the sale proceeds received

by  defendant  No.1  from  sale  of  the  property  of

Nizamuddin.  Application filed by the plaintiff was

objected by the defendants by filing a reply.  It was

pleaded that several opportunities were given to the

plaintiff to lead evidence and last opportunity was

given  on  08.12.2010  to  file  his  evidence  by

28.01.2011. It was further pleaded that in the sale

document  of  Nizamuddin  property,  plaintiff  himself

was a witness.  The relief which is sought to be

amended  is  barred  by  time  and  is  altogether  a

separate cause of action. Plaintiff filed a rejoinder

in which it was stated that plaintiff came to know

that plaintiff had undivided share in the property at

Nizamuddin only in November, 2010.  He further stated

that he informed all the facts to his earlier counsel

but in the plaint the mention of Nizamuddin property

was not made by earlier counsel and while preparing

for evidence in the suit, the fact was noticed by the

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plaintiff  only  in  November,  2010  and  hence

application for amendment has been filed.  The Court

passed on order on 26.07.2011 granting the plaintiff

four week’s time as a last opportunity to file the

examination-in-chief  of  his  witnesses  subject  to

payment of Rs.5,000/-, with regard to I.A. No.1001 of

2011, it was stated “Needless to say in Case I.A.

No.1001/2011  is  allowed,  appropriate  orders  for

evidence of the plaintiff would be made.” Parties led

evidence and suit was fixed for final disposal.  On

14.02.2014,  an  order  was  passed  directing  that

amendment application shall be considered at the time

of  final  hearing  of  the  suit.  Plaintiff  filed  an

application  for  amendment  of  issues,  which  was

rejected  by  the  High  Court  on  09.02.2015.   The

plaintiff filed a FAO (OS) No.196 of 2015, in which

Division  Bench  of  the  High  Court  by  order  dated

28.04.2015  directed  the  learned  Single  Judge  to

decide  the  amendment  application  I.A.  No.  1001  of

2011.   In  the  meantime  on  account  of  pecuniary

jurisdiction of the case, the suit was transferred to

the Court of Additional District Judge, Saket.  The

Additional  District  Judge  took  up  the  amendment

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application and vide order dated 24.10.2016 rejected

the amendment application.  The trial court took the

view that the suit for recovery of money of his share

could have been filed by plaintiff within three years

from the date of sale.  The trial court held that the

amendment  sought  is  barred  by  time,  hence  the

application was rejected.  

A Writ Petition under Article 227 was filed by

the plaintiff in the High Court challenging the order

dated  24.10.2016,  which  has  been  dismissed  by  the

High Court by the impugned judgment, against which

this appeal has been filed.       

2. We have heard Ms. Shobha, learned counsel for the

appellant. Shri S.B. Upadhyay, learned counsel was

heard for respondent No.1, Shri Rana S. Biswas and

Ms. Sharmila Upadhyay, has been heard for respondent

No.5.  Learned counsel for respondent No.5 having

adopted  the  submissions  raised  on  behalf  of

respondent No.1, we shall hereinafter refer to the

submissions of respondent No.1 and respondent No.5 as

submissions on behalf of respondents.

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3. Learned counsel for the appellant in support of the

appeal contends that the application filed by the

plaintiff for amendment under Order VI Rule 17 was

not barred by time.  Relying on Article 110 of the

Limitation Act, 1963, learned counsel submits that

the limitation for enforcing a right to share in a

joint  family  property  is  twelve  years,  hence  the

claim was not barred by time.  The High Court on one

hand refrained itself from saying anything on the

issue of limitation on Article 110 of the Limitation

Act and on the other hand has given an approval to

the view of the learned Additional District Judge

that suit is barred by time.  The High Court has

failed to appreciate that parties have already led

evidence relating to proposed amendment which fact

was recorded by the High Court on 14.02.2014 and only

a formal order of allowing amendment was required,

which  would  not  have  caused  any  prejudice  to  the

defendant.  The High Court on technical grounds has

rejected the amendment application whereas it is well

settled  that  amendment  applications  are  to  be

liberally  considered  and  unless  any  prejudice  is

shown to be caused to the defendant, the applications

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are allowed.  

4. Learned  counsel  for  the  respondent  refuting  the

submission of the appellant contends that amendment

application filed by the appellant could not have

been allowed in view of Proviso to Order VI Rule 17

C.P.C.  It is submitted that trial in the suit has

already commenced and plaintiff failed to show that

in spite of due diligence, he could not raise the

matter earlier, hence the trial court has rightly

rejected the amendment application.  It is further

stated that claim was barred by time.  The amendment

sought to be made related to claim for recovery of

money for which limitation is only three years, as

has been rightly held by the trial court. There is no

substance in the case of the plaintiff that due to

mistake of earlier counsel, the Nizamuddin property

could  not  be  included  in  the  plaint.   Plaintiff

himself has verified the plaint and cannot be allowed

to take any such plea. The Proviso to Order VI Rule

17 does not permit any such amendment as now prayed

by plaintiff.   It is submitted that there was no due

diligence  at  all  on  the  part  of  the

appellant-plaintiff  so  as  to  enable  the  Court  to

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allow the amendment exercising the power reserved to

the  Court  under  Proviso.  The  appellant  in  his

repllication has stated that Lajpat Nagar property

was the one and the only joint family property.  By

allowing the amendment, the very nature of the suit

shall  be  changed,  causing  great  prejudice  to

respondent No.1.  Learned counsel for the respondents

have also raised submissions regarding the merits of

the claim of the plaintiff.     

5. We have considered the submissions of the learned

counsel for the parties and have perused the records.

6. Order VI Rule 17 of C.P.C. as it now exists is as

follows:-

17. Amendment of Pleadings.- 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 par- ties:

Provided that no application for amendment shall  be  allowed  after  the  trial  has  com- menced, unless the court comes to the conclu- sion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.  

7. By Amendment Act 46 of 1999 with a view to shortage

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litigation and speed of the trial of the civil suits,

Rule 17 of Order VI was omitted, which provision was

restored by Amendment Act 22 of 2002 with a rider in

the  shape  of  the  proviso  limiting  the  power  of

amendment to a considerable extent.  The object of

newly  inserted  Rule  17  is  to  control  filing  of

application for amending the pleading subsequent to

commencement  of  trial.   Not  permitting  amendment

subsequent to commencement of the trial is with the

object that when evidence is led on pleadings in a

case, no new case be allowed to set up by amendments.

The  proviso,  however,  contains  an  exception  by

reserving right of the Court to grant amendment even

after commencement of the trial, when it is shown

that in spite of diligence, the said pleas could not

be taken earlier.  The object for adding proviso is

to curtail delay and expedite adjudication of the

cases.   This  Court  in  Salem  Advocate  Bar

Association, T.N. Vs. Union of India, (2005) 6 SCC

344 has noted the object of Rule 17 in Para 26 which

is to the following effect:  

“26. Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again

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been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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.  The  proviso,  to some extent, curtails absolute discretion to allow amendment at any stage. Now, if applica- tion is filed after commencement of trial, it has to be shown that in spite of due dili- gence,  such  amendment  could  not  have  been sought earlier. The object is to prevent friv- olous applications which are filed to delay the trial. There is no illegality in the pro- vision.”

8. The judgment on which much reliance has been placed

by learned counsel for the appellant is Rajesh Kumar

Aggarwal & Ors. Vs. K.K. Modi & Ors. (2006) 4 SCC

385.  This  Court  had  occasion  to  consider  and

interpret Order VI Rule 17 in Paragraphs 15 and 16,

in which following has been held:-

“15. The object of the rule is that the courts should try the merits of the case that come before  them  and  should,  consequently,  allow all amendments that may be necessary for de- termining the real question in controversy be- tween the parties provided it does not cause injustice or prejudice to the other side.

16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of  pleading.  The  second  part  is  imperative (shall)  and  enjoins  the  court  to  allow  all amendments which are necessary for the purpose

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of determining the real question in contro- versy between the parties.”

9. Although Order VI Rule 17 permits amendment in the

pleadings “at any stage of the proceedings”, but a

limitation has been engrafted by means of Proviso to

the effect that no application for amendment shall be

allowed after the trial is commenced. Reserving the

Court’s  jurisdiction  to  order  for  permitting  the

party to amend pleading on being satisfied that in

spite of due diligence the parties could not have

raised the matter before the commencement of trial.

In a suit when trial commences?  Order XVIII of the

C.P.C. deal with “Hearing of the Suit and Examination

of Witnesses”.  Issues are framed under Order XIV. At

the  first  hearing  of  the  suit,  the  Court  after

reading the plaint and written statement and after

examination under Rule 1 of Order XIV is to frame

issues.  Order XV deals with “Disposal of the Suit at

the first hearing”, when it appears that the parties

are not in issue of any question of law or a fact.

After issues are framed and case is fixed for hearing

and the party having right to begin is to produce his

evidence, the trial of suit commences.  This Court in

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Vidyabai & Ors. Vs. Padmalatha & Anr., (2009) 2 SCC

409 held  that  filing  of  an  affidavit  in  lieu  of

examination-in-chief  of  the  witnesses  amounts  to

commencement of proceedings.  In Paragraph 11 of the

judgment, following has been held:-

“11. From  the  order  passed  by  the  learned trial Judge, it is evident that the respon- dents had not been able to fulfil the said precondition.  The  question,  therefore,  which arises for consideration is 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 pro- ceeding. Filing of an affidavit in lieu of ex- amination-in-chief  of  the  witness,  in  our opinion, would amount to “commencement of pro- ceeding”.”

10.Coming to the facts of the present case, it is clear

from the record that issues were framed on 17.05.2010

and  case  was  fixed  for  recording  of  evidence  of

plaintiff on 10.08.2010.  Plaintiff did not produce

the evidence and took adjournment and in the meantime

filed an application under Order VI Rule 16 or 17 on

17.01.2011. Thereafter the Court on 26.07.2011 has

granted four week’s time as the last opportunity to

file the examination-in-chief.  It is useful to quote

Paragraph 4 of the Order, which is to the following

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effect:-

4. In view of the above, it is directed as follows:-

(i) Having  regard  to  the  delay  which  has ensued, subject to the plaintiff paying costs  of  Rs.5,000/-  each  to  the contesting defendant No.1 and 5 within a period  of  one  week,  the  plaintiff  is permitted  four  weeks  time  as  a  last opportunity  to  file  the examination-in-chief of his witnesses on affidavit.

(ii) The  matter  shall  be  listed  before  the Joint  Registrar  for  recording  of plaintiffs evidence on 29th August, 2011.

(iii) The  case  shall  be  listed  before  court for direction on 18th January, 2012.

(iv) Needless to say in case IA No. 1001/2011 is  allowed,  appropriate  orders  for evidence  of  the  plaintiff  would  be made.”

               11.Thus technically trial commenced when the date was

fixed  for  leading  evidence  by  the  plaintiff  but

actually the amendment application was filed before

the evidence was led by the plaintiff.  The parties

led  evidence  after  the  amendment  application  was

filed. In this context, it is necessary to notice the

order  of  the  High  Court  dated  14.02.2014,  which

records that evidence of both the parties have been

concluded.  Most important fact to be noticed in the

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order is that the Court recorded the statement of

plaintiff’s counsel that parties have led evidence in

view of the amendment sought in the plaint.  Order

dated 14.02.2014 is to the following effect:-

“The  evidence  of  both  the  parties  has  been concluded.   The  matter  has  been  listed  for final  disposal.  Learned  counsel  for  the plaintiff has pointed out the order dated 26th July, 2011 wherein observation was made that in case I.A. No. 1001/2011 under Order VI Rule 17 CPC for amendment of the plaint is allowed, appropriate  order  for  evidence  of  the plaintiff would be made.  As a matter of fact, plaintiffs  counsel  stated  that  the  parties have also led evidence in view of amendment sought in the plaint and the same covered in the  evidence  produced  by  the  parties.   The defendants,  however,  alleged  that  the  said amendment was unnecessary and was opposed by the defendants and issue involved in the said circumstances  be  considered  at  the  time  of final  hearing  of  suit  as  defendant  No.1  is more than 85 years old lady, the suit itself be decided.  

List  this  matter  in  the  category  of  Short cause on 22 May, 2014……”

12.By same order dated 14.02.2014, the Court directed

amendment application be taken at the time of final

hearing.  As noticed above, when plaintiff sought for

framing  additional  issues  which  application  was

rejected, the matter was taken before the Division

Bench and the Division Bench ultimately has directed

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the learned Single Judge to consider the amendment

application.  Subsequently, the amendment application

was rejected on 24.10.2016.   

13.The  Proviso  to  Order  VI  Rule  17  prohibited

entertainment  of  amendment  application  after

commencement of the trial with the object and purpose

that  once  parties  proceed  with  the  leading  of

evidence,  no  new  pleading  be  permitted  to  be

introduced.  The present is a case where actually

before  parties  could  lead  evidence,  the  amendment

application has been filed and from the order dated

14.02.2014, it is clear that the plaintiff’s case is

that parties have led evidence even on the amended

pleadings and plaintiff’s cases was that in view of

the fact that the parties led evidence on amended

pleadings,  the  allowing  the  amendment  was  mere

formality. The defendant in no manner can be said to

be prejudiced by the amendments since plaintiff led

his evidence on amended pleadings also as claimed by

him.  

14.This  Court  in  Chander  Kanta  Bansal  Vs.  Rajinder

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Singh Anand, (2008) 5 SCC 117 has noted the object

and purpose of amendment made in 2002.  In Para 13,

following has been held:-

“13. The entire object of the said amendment is to stall filing of applications for amend- ing a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the other’s case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an  exception  is  made  in  the  newly  inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out enter- taining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases.”

15.Looking to the object and purpose by which limitation

was put on permitting amendment of the pleadings, in

substance, in the present case no prejudice can be

said  to  have  caused  to  the  defendant  since  the

evidence  was  led  subsequent  to  the  filing  of  the

amendment application. We thus are of the view that

looking to the purpose and object of the Proviso,

present  was  a  case  where  it  cannot  be  held  that

amendment application filed by the plaintiff could

not be considered due to bar of the Proviso.     

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16.Now, we come to the one of the main reason given by

the trial court in rejecting the application that the

claim  was  barred  by  limitation.   The  Nizamuddin

property, which property was sought to be added in

the suit for partition was a property, which was sold

by respondent No.1 in the year 2000, in which the

plaintiff was also one of the witnesses.  The trial

court took the view that the suit was simplicitor for

recovery of money for which limitation is only three

years from the date of sale and not twelve years as

claimed  by  the  applicant.   With  regard  to  the

limitation, the plaintiff-appellant relies on Article

110 of the Limitation Act, which is to the following

effect:-

Article No.

Description  of Suitt

Period  of Limitation

Time from which period begins to run

110 By a person  excluded from a  joint family  property to  enforce a right  to share therein.

Twelve Years

When  the exclusion becomes known  to the plaintiff

17.Present is not a case of simply recovery of money.

Plaintiff’s claim is to enforce a right to share in

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the Nizamuddin property, which was sold in the year

2000 and according to plaintiff, the limitation is

twelve years as per Article 110.  The High Court has

also noted the order of Additional District Judge

holding that claim is barred by time.  The High Court

refrained from expressing any final opinion on the

question of limitation but observed that the view

taken by the Additional District Judge is correct.

It is relevant to refer to Para 28 of the judgment,

which is to the following effect:-

“The learned Additional District Judge in the impugned  order  has  also  accepted  the contention  of  the  counsel  for  the respondents/defendants of the relief sought to be added by way of amendment being barred by time and Articles 106 and 110 of the Schedule to the Limitation Act being not applicable. The counsel for the petitioner/plaintiff has been unable to show any precedent that a claim for a definite share in the sale proceeds of, a property would be governed by Articles 106 and  Article  110  supra.   However,  the  same being  in  the  nature  of  entering  into  the merits  of  the  amendment,  I  refrain  from dealing with the said aspect, though the view taken by the learned Additional District Judge appears to be reasonable and plausible.”  

18.In the facts of the present case, final determination

as to whether the claim could be held to be barred by

time could have been decided only after considering

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the evidence led by the parties.  Whether plaintiff

had any share in the property, which was sold in the

year 2000 and what was the nature of his share and

whether he can claim recovery of his share within

twelve years were all the questions on which final

adjudication could have been made after considering

the  evidence  and  at  the  stage  of  considering  the

amendment in the facts of the present case, it was

too early to come to a conclusion that limitation was

only three years and not twelve years as claimed by

the  plaintiff.   The  High  Court  on  the  one  hand

refrained  from  expressing  any  opinion  and  on  the

other hand has expressed his agreement with the view

taken by the Additional District Judge rejecting the

application as barred by time.   

19.While  considering  the  prayer  of  amendment  of  the

pleadings by a party, this Court in the case of   

Mahila  Ramkali  Devi  &  Ors.  Vs.  Nandram  (Dead)

through Legal Representatives & Ors., (2015) 13 SCC

132  has again reiterated the basic principles, which

are  to  be  kept  in  mind  while  considering  such

applications in Paragrpahs 20, 21 and 22, which is

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quoted as below:-     

“20. It is well settled that rules of proce- dure are intended to be a handmaid to the ad- ministration of justice. A party cannot be re- fused just relief merely because of some mis- take, negligence, inadvertence or even infrac- tion of rules of procedure. The court always gives  relief  to  amend  the  pleading  of  the party, unless it is satisfied that the party applying was acting mala fide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost.

21. In our view, since the appellant sought amendment in Para 3 of the original plaint, the High Court ought not to have rejected the application.

22. In Jai Jai Ram Manohar Lal v. National Building  Material  Supply3,  this  Court  held that the power to grant amendment to pleadings is intended to serve the needs of justice and is not governed by any such narrow or techni- cal limitations.”

20.Although, learned counsel for the parties in their

submissions have raised various submissions on the

merits of the claim of the parties, which need no

consideration by us since the only issue which has to

be  considered  is  as  to  whether  the  amendment

application filed by the plaintiff deserves to be

allowed or not. We make it clear that we have neither

entered into merits of the claim nor have expressed

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any opinion on the merits of the claim of either

party and it is for the trial court to consider the

issues on merits while deciding the suit.  

 21.Taking into overall consideration of the facts of the

present case and specially the fact that evidence by

the parties was led after the filing of the amendment

application, we are of the view that justice could

have  been  served  in  allowing  the  amendment

application.  We thus allow the appeal and set aside

the order of the High Court as well as the order of

the  Additional  District  Judge.   The  amendment

application  I.A.  No.  1001  of  2011  stand  allowed.

Both the parties have led their evidences and case

has already been fixed for hearing, however, to avoid

any prejudice to the parties, justice will be served

in giving a limited opportunity to the parties to

lead additional evidence, if they so desire.   

22.We thus direct that the parties may file this order

before the trial court within two weeks from today,

on  receipt  of  the  order,  the  trial  court  shall

consider on framing of additional issue, if necessary

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and shall thereafter grant opportunity to the parties

to  lead  additional  evidence,  if  any.   The  entire

exercise shall be completed within three months and

thereafter  suit  be  decided  finally.   The  parties

shall bear their own costs.  We make it clear that we

have not expressed any opinion on merits of the case

including on the question of applicability of Article

110 of the Limitation Act and all the issues shall be

decided on the basis of materials on record without

being influenced by any observation made by us.  

..........................J. ( A.K. SIKRI )

..........................J. NEW DELHI,     ( ASHOK BHUSHAN ) DECEMBER 11, 2017.