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No application for amendment shall be allowed after the trial has commenced unless the party could not have raised the matter before the commencement of the trial: High Court of J&K and Ladakh

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 the trial as held by the Hon’ble High Court of J&K and Ladakh through the learned bench of Justice Vinod Chatterji Koul in the case of Aziz Vs Ghulam Mohammad [OWP no.873/2017]. Mr. M.S. Lateif was the learned counsel for the petitioner and the respondent was represented by Mr. Shakir Mehmood, learned Counsel.

Brief facts of the case are that Ghulam Mohammad alias Gulla/Mohamad – respondent herein had filed a civil suit titled Ghulam Mohammad v. Rasool and others, before the court of Munsiff, Charar-i-Sharief (for brevity “Trial Court”). Respondent/plaintiff sought amendment of the plaint. The Trial Court by order dated 12th June 2017 allowed amendment with costs of Rs.1500/- to be paid by plaintiff/respondent to defendants. It is this order, of which the petitioner is aggrieved and seeks setting aside thereof.

According to learned senior counsel appearing for the petitioner, the impugned order is not in consonance with provisions of Order VI Rule 17 of the Code of Civil Procedure as amendment sought for by respondent was not bona fide as it caused prejudice to the petitioner. The order impugned is stated to have been passed in a mechanical and slipshod manner inasmuch as Trial Court has not appreciated the law cited by the petitioner.

The Hon’ble High Court perused the Order VI Rule 17 CPC which 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. However, the court concluded 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 the trial.

After perusal of the facts and the above-mentioned order, the High Court while dismissing the petition stated that “The Trial Court has made a comprehensive, lucid and eloquent discussion as to the subject-matter of the suit as also the amendment sought for by respondent and found that amendment does not change the basic and core issue/controversy or fundamental character of the suit and that amendment will not only help in effective adjudication of core controversy but will also help the parties to prove the pleas taken in a better way. The impugned order does not disclose any perversity, infirmity and is a good reason and, therefore, does not warrant any interference and as a consequence of which, the instant writ petition is liable to be dismissed.”

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Judgment Reviewed by – Aryan Bajaj

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