Case: PANDIT MALHARI MAHALE Vs. MONIKA PANDIT MAHALE &amp; ORS

4. A suit for partition was filed by the respondents i.e. wife and children of the appellant. In the suit, evidence started and thereafter an application for amendment of plaint was filed by plaintiff No.3. The amendment was objected by the defendant (appellant herein). However, the learned Civil Judge by order dated 09.03.2016 allowed the application against which the writ petition was filed which was dismissed.

Reasoning:
6. We have considered the submissions of learned counsel for the appellant and perused the record.7. From the evidence on record, it does appear that evidence had begun and thereafter amendment application was filed. Without their being any finding by the Court as contemplated by Order VI Rule 16 proviso, the Court ought not to have allowed the amendment.8. In the present case, the Civil Judge has not returned any finding that the Court is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In Vidyabai & Ors. v. Padmalatha & Anr. [(2009) 2 SCC 409   ], this Court observed in para 19 as under:19. It is primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The courts jurisdiction in a case of this nature is limited. Thus unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.9. There being no finding by the Court that the Court is satisfied in spite of due diligence, the party could not introduce amendment before commencement of the trial, the order of the Trial Judge is unsustainable. The High Court has not adverted to the above aspect of the matter.