A compromise decree he was never party to turned up in the Tahsildar's records, and that is due diligence enough to amend

Justices B.V. Nagarathna and R. Mahadevan allowed an amendment the trial court and the Orissa High Court had refused, subject to costs of Rs 25,000.

The proviso to Order VI Rule 17 of the Code of Civil Procedure bars an amendment after the trial begins unless the court concludes that the party could not have raised the matter before, despite due diligence. The plaintiff here found out, only on searching the Tahsildar's office, that a compromise decree had been passed in a 1998 suit to which he was not a party, and that it had allotted part of his land to one of the defendants. Both the trial court and the Orissa High Court refused his amendment as too late. On 12 October 2026 the Supreme Court allowed it, on costs.

A chain of sale deeds going back to 1940

The original plaintiff had sued in 2009 for a declaration of his right, title and interest over the suit property, recovery of possession and rectification of registered sale deeds of 1971 and 1978 under which he had purchased two plots. The appellants are his legal heirs, brought on record after he died while the amendment application was pending.

In respect of one plot, sale deeds had been executed successively down a chain from 1976 to 2005 to 2015. In respect of the other, a sale deed of 2007 had been executed in favour of two defendants, and at that stage the source of the vendor's title was not known to the plaintiff. When those defendants filed their written statement and disclosed that the plot stood recorded in their names, the plaintiff sought a first amendment, pleading that the plot was vacant land belonging exclusively to a named person who had acquired it in a mutual partition among purchasers under a registered sale deed of 1940. The defendants denied that in an additional written statement.

What the search turned up

The plaintiff then applied again under Order VI Rule 17 read with Section 151. His case was that although the plot and khata numbers had been disclosed in the written statements, the mutation case number had not been mentioned in either of them. On conducting a search in the office of the Tahsildar at Niali, he came to know of a compromise decree passed in a title suit of 1998 to which he was not a party. On obtaining certified copies of the plaint and the final decree in that suit, he found that an area including his suit land had been allotted to one of the defendants under that compromise decree. He sought to plead the foundation for challenging it, and a declaration that the final decree in that suit was null and void.

The record also showed how confused the revenue position was. In a 2007 order the Tahsildar had noticed that there were multiple registered sale deeds in respect of the same property executed by different parties, and that the record of rights had been corrected in individual case proceedings; he recorded that he was not in a position to decide the matter or pass any order.

Due diligence, measured against the facts

The trial court rejected the amendment in September 2022 and the High Court declined to interfere in April 2023, both treating the application as belated and the amended claims as barred by limitation on the date it was made.

The Supreme Court approached due diligence as a question of fact rather than a rule of time. The case turns on its own facts: a disputed chain of title, the assertion that the original plaintiff was not a party to the compromise proceedings, the subsequent discovery of the compromise decree, and the material showing that certified copies of the plaint and the final decree were obtained only on 22 June 2020. Together, the Court held, those furnish an explanation which cannot at this stage be construed as a mere omission or negligence, and the requirement of due diligence under the proviso stands satisfied.

The appellants had relied on A.K. Gupta & Sons Ltd. v. Damodar Valley Corporation for the proposition that the amendment introduced neither a new case nor a new cause of action but was needed to bring the real question in controversy on record, and on Abdul Rehman v. Mohd. Ruldu for the proposition that whether relief sought by amendment is barred by limitation has to be examined on the facts of each case. The Court distinguished Basavaraj v. Indira, relied on against them, as not calling for a different conclusion on these facts.

Avoiding two fights over one field

A second consideration weighed with the Court. Refusing the amendment would push the same property into separate proceedings, with the attendant possibility of inconsistent findings about the same parcel of land. Avoiding that multiplicity, while preserving the respondents' right to contest the amended pleadings on every available ground, is itself a relevant factor in the exercise of jurisdiction under Order VI Rule 17.

The Court did not ignore what the delay costs the other side. The considerable delay in seeking the amendment, and the inconvenience it may cause the respondents, could not be disregarded, and the appropriate course was to permit the amendment subject to costs.

Order

The orders of the trial court dated 21 September 2022 and of the High Court dated 10 April 2023 were set aside and the amendment application allowed, subject to payment of costs of Rs 25,000 to the contesting respondents within two weeks. The appellants are to carry out the consequential amendments to the plaint within four weeks thereafter, and the respondents are at liberty to file additional written statements within such period as the trial court fixes. All questions relating to limitation, maintainability, the applicability of Order XXIII Rule 3A, the validity and binding nature of the compromise decree, title, possession and the merits of the respective claims were left open for the trial court. The appeal was allowed on those terms.