Blaming Previous Counsel For Omission Does Not Satisfy 'Due Diligence' Test To Amend Plaint After Trial Commences: Punjab & Haryana High Court

"If every omission on the part of an advocate were to be accepted as sufficient compliance with the proviso, the legislative restriction enacted by Parliament would become wholly ineffective, for every delayed amendment could thereafter be justified by attributing blame to the previous counsel." Punjab and Haryana High Court, in a significant ruling, held that a litigant cannot bypass the statutory bar on amending pleadings after the commencement of a trial merely by attributing the omission to their previous counsel.

A bench of Justice Deepak Gupta observed that such an explanation fails to meet the mandatory jurisdictional requirement of "due diligence" under the proviso to Order VI Rule 17 of the Code of Civil Procedure (CPC).

The petitioner-plaintiff originally instituted a suit seeking a declaration and permanent injunction regarding a plot in Hisar. The defendant's written statement specifically relied on an agreement dated January 11, 2013, allegedly executed by the plaintiff himself regarding a half-share of the same plot. Despite this early disclosure, the plaintiff proceeded to trial, concluded his oral evidence, and only sought to amend the plaint to challenge the 2013 agreement after his evidence was formally closed. The trial court dismissed the amendment application, prompting the present revision petition before the High Court.

The primary question before the court was whether a change of counsel and an alleged inadvertent omission by the previous advocate constitutes "due diligence" to permit an amendment of pleadings after the commencement of trial under Order VI Rule 17 CPC. The court was also called upon to determine if such a belated amendment could be allowed when it would inevitably necessitate reopening the entire evidentiary process.

Strict Embargo After Commencement Of Trial

The court began by emphasizing the mandatory nature of the proviso to Order VI Rule 17 CPC, inserted by the Code of Civil Procedure (Amendment) Act, 2002. Justice Gupta noted that the legislative intent, as explained by the Supreme Court in Salem Advocate Bar Association v. Union of India, was to discourage belated amendments and ensure the expeditious disposal of civil proceedings. The bench highlighted that once a trial has commenced, the court is stripped of its unqualified discretion unless specific statutory conditions are strictly met.

Requirement Of Due Diligence Is Jurisdictional

Relying on Supreme Court precedents, including Vidyabai v. Padmalatha and Chander Kanta Bansal v. Rajinder Singh Anand, the court stressed that recording satisfaction regarding due diligence is an absolute prerequisite. The court clarified that the requirement of due diligence is not merely procedural but deeply jurisdictional in nature. The bench emphasized that negligence, inadvertence, or an omission cannot be equated with due diligence when the material facts were always within the party's direct knowledge.

Blaming Counsel Does Not Suffice

Addressing the petitioner's core argument that the previous counsel had inadvertently failed to challenge the agreement, the court firmly rejected this explanation as inadequate. The judge observed that while a litigant is entitled to engage a counsel of choice and may seek relief for bona fide mistakes, the statutory requirement under the proviso demands that the party itself acted with reasonable diligence. The court noted that the application was conspicuously silent on what steps the plaintiff personally took after the written statement was filed.

Prejudice To Opposite Party And Reopening Trial

The court also examined the practical consequences of allowing the amendment at such an advanced stage. By seeking to introduce fresh allegations of fraud and lack of consideration regarding the 2013 agreement, the plaintiff was substantially altering the scope of the dispute. The bench noted that permitting the amendment after the plaintiff had exhausted his evidentiary opportunities would severely prejudice the defendants by striking at the orderly progress of the ongoing trial.

"The inevitable consequence would be reopening of the entire evidentiary exercise, recall or re-examination of witnesses and corresponding opportunity to the defendants to amend their defence and lead further evidence."

Distinction Between Delay And Lack Of Due Diligence

The petitioner heavily relied upon the Supreme Court's judgment in Life Insurance Corporation of India v. Sanjeev Builders Private Limited to argue that mere delay should not defeat substantial justice. Distinguishing this reliance, Justice Gupta clarified that while the Supreme Court allowed amendments necessary for determining real controversies, it never diluted the statutory embargo created by the proviso. The High Court underscored a fundamental conceptual difference between mere delay and an absolute lack of due diligence.

Absence Of Diligence Strikes At Court's Jurisdiction

The court firmly established that a failure to demonstrate due diligence takes away the court's power to allow an amendment once evidence has begun. The bench stated that the present case did not turn upon delay alone, but rather on the complete absence of a factual foundation to prove diligence. The court remarked that "while delay may in an appropriate case be compensated by costs, absence of due diligence strikes at the very jurisdiction of the Court to exercise discretion after commencement of trial."

Finding no perversity or jurisdictional error in the trial court's approach, the High Court affirmed the dismissal of the amendment application. The court concluded that the petitioner failed to establish the requisite due diligence to overcome the statutory bar of Order VI Rule 17 CPC, thereby warranting no supervisory interference under Article 227 of the Constitution. The revision petition was accordingly dismissed.

Date of Decision: 23 July 2026