Summary
The plaintiffs could not amend their nearly concluded partition suit to seek a declaration setting aside a compromise decree. They had long known of the decree, pleaded only oversight rather than due diligence, sought the amendment after the three-year limitation period, and had not joined all parties to the compromise.
Issues
- Could the plaintiffs amend their partition plaint at the fag end of trial to seek a declaration that an earlier compromise decree was null and void?
- Did the application satisfy the due-diligence proviso to Order VI Rule 17, and was the proposed relief within limitation?
Provisions considered
- Order VI Rule 17, Code of Civil Procedure, 1908After commencement of trial, amendment requires a finding that despite due diligence the party could not have raised the matter earlier. The plaintiffs knew of the compromise decree and pleaded only oversight, so the proviso was not met. (¶¶ 8, 8.1, 9)
- Order XXIII Rule 3 proviso and Rule 3A; Section 96(3), Code of Civil Procedure, 1908A consent decree is binding unless set aside by the court that recorded the compromise on an application under the Rule 3 proviso; an independent suit to set it aside is barred. The proposed declaration could not be added to a separate partition suit. (¶¶ 7, 13)
- Article 59, Limitation Act, 1963The three-year limitation period to cancel or set aside an instrument or decree had expired before the amendment application was filed, and the accrued limitation defence could not be taken away by amendment. (¶¶ 12, 12.1)
Held
- A party seeking to set aside a compromise decree must approach the court that recorded the compromise under the proviso to Order XXIII Rule 3. An independent suit is barred, and the decree remains binding unless set aside by that court. (¶ 7)
- Order VI Rule 17’s due-diligence proviso barred the late amendment: the plaintiffs knew of the compromise decree, had pleaded it in their partition suit, and gave only oversight as the reason for not seeking relief earlier. (¶¶ 6, 6.1, 8, 8.1)
- The proposed declaration was sought more than three years after the compromise decree, beyond Article 59’s limitation period; allowing it would prejudice the appellant by depriving him of an accrued limitation defence. The proposed relief also could not effectively set aside the decree without all parties to it before the court. (¶¶ 11, 12, 12.1, 13)
Result
Appeal allowed; the High Court order allowing amendment was set aside and the amendment application dismissed. Respondents 1 and 2 were directed to pay costs of ₹1,00,000 jointly or severally by the next date before the trial court.