Summary
A partition plaintiff sought to add a claim to proceeds of another family property before evidence was actually led. Although trial had technically commenced, the later evidence addressed the proposed pleading and no prejudice justified rejecting amendment. The Court allowed it, leaving the claimed share and disputed limitation period for final adjudication.
Issues
- Whether the commencement-of-trial proviso barred the amendment on these facts.
- Whether disputed limitation justified rejecting the proposed share claim at the amendment stage.
Provisions considered
- OrderVI Rule17 and proviso, Code of Civil Procedure, 1908The proviso guards against late new cases after evidence begins. On this record, the application preceded actual evidence and evidence addressed the amendment, so its consideration was not barred. (¶ 6–15)
- Article110, Limitation Act, 1963The asserted twelve-year period for enforcing a share was contrasted with the defendants’ three-year money-recovery theory; its applicability was expressly left undecided. (¶¶ 16–18, 22)
Held
- The due-diligence proviso limits post-commencement amendments but must be applied with its purpose in view. Though a date for evidence had technically commenced trial, the application preceded actual evidence; the subsequent evidence and absence of prejudice justified considering and allowing it in these circumstances. (¶¶ 9–15, 21)
- The claim was not simply money recovery: the asserted property share, its nature and the applicable limitation required evaluation of evidence. It was premature at this stage to conclude that three years necessarily applied rather than the claimed twelve years. No final ruling on Article110 or the merits was made. (¶¶ 16–20, 22)
- To avoid prejudice despite completed evidence, a limited opportunity for further evidence and consideration of any necessary additional issue were directed before final disposal. (¶ 21–22)
Result
Appeal allowed; rejection orders set aside and amendment allowed. Parties to present this order within two weeks; trial court to consider additional issues and evidence, complete that exercise within three months, then decide the suit. Merits and limitation left open; parties bear own costs.