Order 6 Rule 17 CPC | Jharkhand HC Upholds Rejection Of Amendment In Partition Suit At Appellate Stage | Admission In Pleadings Cannot Be Wiped Out
Safiya Malik
The High Court of Jharkhand Single Bench of Justice Sanjay Kumar Dwivedi has dismissed a petition seeking to set aside an order of the first appellate court that rejected a request for amendment of pleadings at the appellate stage. The Court held that there was no error in the first appellate court’s decision and that the petition was liable to be dismissed. The directive concluded that the petition stood dismissed, and any pending interlocutory application was disposed of.
The matter arose from a civil dispute in which the petitioner had filed a Title (Partition) Suit No. 497 of 1997 for a decree of partition, seeking allotment of his entire share in Schedule-A property and half shares in Schedule-B and C, along with appointment of a receiver and costs. The suit was decreed in favour of the petitioner by judgment dated 26 April 2024 and decree dated 9 May 2025. During the trial, the petitioner had filed an amendment application under Order VI Rule 17 of the Code of Civil Procedure (CPC), registered as M.C.A. No. 171 of 2024, which was allowed on 19 April 2024.
However, Amendment No. VII, as allowed, was not incorporated in the plaint or reflected in the decree. The defendants filed Civil Appeal No. 82 of 2024 against the judgment and decree. During the appellate proceedings, the petitioner discovered that Amendment No. VII had not been carried into the plaint and moved an application under Order VI Rule 17 read with Rule 18 CPC before the first appellate court to incorporate it. The first appellate court rejected the application by order dated 11 April 2025 in Miscellaneous Civil Application No. 19 of 2025, holding that the amendment could not be introduced at the appellate stage.
The petitioner, through senior counsel, argued before the High Court that the omission was inadvertent and that courts generally adopt a liberal approach in allowing amendments necessary for determining the real controversy. Reliance was placed on judgments including Dwarika Prasad (D) through LRs v. Prithvi Raj Singh (2024 SCC OnLine SC 3828), Rafiq and another v. Munshilal and another ((1981) 2 SCC 788), Ram Kumar Gupta and others v. Har Prasad and another ((2010) 1 SCC 391), and Salmona Villa Co-operative Housing Society Ltd. v. Mary Fernandes and others (1996 SCC OnLine Bom 475). The petitioner contended that the amendment was a formal one and should have been permitted even at the appellate stage.
The opposite party opposed the plea, submitting that the trial had concluded, the judgment had been passed, and the decree prepared. It was argued that the application was filed casually and was not maintainable. The respondent pointed out that Amendment No. VII appeared in handwriting on a typed petition and that under Order VI Rule 18 CPC, amendments not carried out within the stipulated time could not be allowed. It was contended that the first appellate court rightly rejected the application.
The Court recorded that it was undisputed that the suit had been decreed in the petitioner’s favour and that the amendment petition had been allowed by the trial court on 19 April 2024. The Court noted that the amendment was handwritten into a typed petition, that the numbering of the amendments was inconsistent, and that despite the allowance of the amendment, it had not been incorporated in the plaint before the trial court. The Court further observed that the petitioner continued proceedings without carrying out the amendment, and judgment and decree were passed on that basis.
The Court stated: "Order VI Rule 17 of the CPC confers a discretionary jurisdiction on the Court exercisable at any stage of the proceedings to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The rule goes on to provide that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."
It added: "Unless and until the Court is told how and in what manner the pleading originally submitted to the Court is proposed to be altered or amended, the Court cannot effectively exercise its power to permit amendment."
Citing J. Samuel & others v. Gattu Mahesh & others (2012 (2) SCC 300), the Court quoted: "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." The Court explained the concept of "due diligence" and stressed its necessity in such applications.
It found that no reasonable explanation had been offered for not carrying out the amendment before the trial court and that allowing it at the appellate stage could prejudice the opposite party by altering the pleadings and admissions already considered.
The Court held that the authorities cited by the petitioner related primarily to restoration matters and were distinguishable on facts. It stated that the 2002 amendment to Order VI Rule 17 CPC aimed to prevent surprise amendments after trial commencement, and the cited judgments predated this change or involved different factual contexts.
The Court concluded that there was no error in the order of the first appellate court rejecting the amendment application at the appellate stage. It stated that "this petition is dismissed" and further directed: "Pending I.A., if any, is disposed of."
Advocates Representing the Parties:
For the Petitioner: Mr. R.N. Sahay, Senior Advocate; Mrs. Bakshi Vibha, Advocate
For the Respondents: Mr. Shiv Narayan Singh, Advocate; Mr. Pran Pranay, Advocate
Case Title: Prabodh Kumar Tiwary v. Rakesh Kumar Tiwari & Ors.
Neutral Citation: 2025: JHHC:16653
Case Number: C.M.P. No. 436 of 2025
Bench: Justice Sanjay Kumar Dwivedi
