After commencement of trial, amendment under Order VI Rule 17 CPC is permissible only on proof of due diligence. Conversion of a suit for permanent injunction into declaration of title at the second appellate stage fundamentally changes the nature of the suit and is impermissible. Belated amendment sought after dismissal of suit and first appeal cannot be allowed merely to overcome adverse findings. Amendment cannot be used as a tool to reopen concluded litigation or cure inherent defects noticed by courts below. Failure to seek amendment at earlier stages disentitles the party from seeking it after prolonged delay.

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Civil Procedure Code, 1908 — Order VI Rule 17

Amendment of pleadings — Scope — Proviso — Due diligence — Mandatory requirement.

After commencement of trial, amendment of pleadings cannot be permitted unless the party seeking amendment establishes that in spite of due diligence, such amendment could not have been sought earlier.
The burden squarely lies on the applicant to satisfy the proviso to Order VI Rule 17 CPC.
(Paras 7–8)

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Amendment at Second Appeal stage

Belated amendment — After dismissal of suit and appeal — Not permissible.

Where:

• suit was instituted in 2004,
• dismissed on merits in 2008,
• appeal dismissed in 2011, and
• second appeal pending from 2011,

an amendment application filed in 2022 at the stage of final hearing of second appeal is grossly belated and liable to be rejected.
(Paras 4–6, 9)

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Suit for Permanent Injunction — Conversion into declaration of title

Change of nature of suit — Impermissible.

Conversion of a suit for bare permanent injunction into a suit for declaration of title and consequential injunction:

• introduces a new cause of action,
• alters the fundamental character of the suit, and
• cannot be permitted at the second appellate stage.

Such amendment is hit by Order VI Rule 17 CPC.
(Paras 5–9)

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Change in nature of suit — Test

An amendment which:

• introduces an entirely new and inconsistent case, or
• transforms the nature and character of the original suit,

must be rejected.
(Paras 7–9)

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Delay — Effect

Though delay alone is not a ground to reject amendment, delay coupled with:

• absence of due diligence,
• attempt to reopen concluded findings, and
• change in nature of suit,

is fatal to the amendment application.
(Paras 6–9)

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Second Appeal — Substantial question of law already raised

Where the appellant himself raised a substantial question of law at the time of filing the second appeal regarding maintainability of injunction suit without declaration of title, failure to seek amendment either before the trial court or appellate court disentitles him from seeking amendment after eleven years of pendency of second appeal.
(Para 6)

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Amendment — Mala fide attempt

Filing an amendment application:

• after 18 years of institution of suit,
• after losing before two courts, and
• at the stage of final hearing in second appeal,

amounts to a mala fide attempt to reopen settled issues and cannot be permitted.
(Para 9)

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Amendment — Not a matter of right

Amendment of pleadings is not a matter of right and cannot be claimed under all circumstances.
Courts must refuse amendment where statutory conditions under Order VI Rule 17 CPC are not satisfied.
(Para 8)

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Amendment — Limitation and accrued rights

An amendment which would:

• deprive the opposite party of valuable accrued rights, and
• permit resurrection of a claim long after limitation,

is liable to be rejected.
(Paras 7–9)

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RATIO DECIDENDI

1. After commencement of trial, amendment under Order VI Rule 17 CPC is permissible only on proof of due diligence.

2. Conversion of a suit for permanent injunction into declaration of title at the second appellate stage fundamentally changes the nature of the suit and is impermissible.

3. Belated amendment sought after dismissal of suit and first appeal cannot be allowed merely to overcome adverse findings.

4. Amendment cannot be used as a tool to reopen concluded litigation or cure inherent defects noticed by courts below.

5. Failure to seek amendment at earlier stages disentitles the party from seeking it after prolonged delay.