Defendant seeks to amend written statement after evidence is closed. Whether court can allow such amendment?

The Governing Provision: Order VI, Rule 17

Order VI, Rule 17 of the Code of Civil Procedure is the sole provision that governs amendment of pleadings, including the written statement. It empowers the court at any stage of the proceedings to allow either party to alter or amend his pleadings in such manner and on such terms as may be just, for the purpose of determining the real questions in controversy. However, by the Code of Civil Procedure (Amendment) Act, 2002, a crucial proviso was engrafted onto this rule which reads: no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

This proviso is not merely directory caution — it is a jurisdictional embargo. The courts have consistently held that once trial has commenced, the court's power to allow amendment is limited and cannot be exercised unless the defendant satisfies the precondition set out in the proviso.

When Does "Trial" Commence?

The proviso uses the expression "commencement of trial" and this has been extensively litigated. The Supreme Court in Vidyabai v. Padmalatha (AIR 2009 SC 1433) held that the date on which issues are framed is the date of the first hearing, and that the filing of an affidavit in lieu of examination-in-chief of a witness amounts to commencement of proceedings for the purposes of the proviso. In Baldev Singh's case, the Supreme Court elaborated that the commencement of trial, as used in the proviso, must be understood in the limited sense as meaning the final hearing of the suit — examination of witnesses, filing of documents and addressing of arguments.

Since the question posits that evidence is already closed, there is no doubt that trial has not merely commenced — it has substantially advanced. The defendant is therefore squarely within the zone where the proviso applies with full force.

The Central Test: Due Diligence

The entire edifice of the defendant's application rests on one question: whether, despite the exercise of due diligence, the matter sought to be raised by amendment could not have been raised before the commencement of trial. Due diligence means reasonable diligence — such diligence as a prudent man would exercise in the conduct of his own affairs.

The Supreme Court in a significant ruling held that where the defendant sought amendment of the written statement after the plaintiff had filed an affidavit in lieu of examination-in-chief, the trial court was right in refusing the amendment, because the defendant had not fulfilled the precondition of demonstrating that despite due diligence the matter could not have been raised earlier, and the High Court was wrong in interfering in writ jurisdiction with that refusal.

Similarly, in another case the Supreme Court held that where the defendant sought amendment of the written statement after the commencement of trial and after evidence of three witnesses had been tendered, no ground had been raised in the amendment petition to show that despite due diligence the matter could not have been raised earlier, and granting such amendment would cause prejudice to the plaintiff — the application was correctly rejected.

What the Court Must Examine

When such an application comes before the court, the court must ask itself the following:

• Is the amendment imperative for proper and effective adjudication of the case?

• Is the application bona fide and not an attempt to delay or introduce a contradictory case?

• Can the opposite party be adequately compensated by costs, or will irreparable prejudice result?

• Does the proposed amendment merely elaborate or amplify the defence already taken, or does it introduce an entirely new case?

• Would a fresh suit on the amended claim be barred by limitation?

An Important Exception: Subsequent Events

There is, however, an important qualification carved out by courts for amendments necessitated by subsequent events — events that occurred after the filing of the written statement and could not therefore have been pleaded earlier. Courts have held that where the defendant seeks to incorporate a plea arising from a law that was enacted or a fact that arose during the pendency of the suit, and the plea was not available to him at the time of filing the written statement, the amendment may be allowed even after the trial is closed, since the defendant cannot be said to have lacked due diligence in failing to raise what did not then exist. The Andhra Pradesh High Court, for instance, allowed a defendant to amend the written statement even after the trial was closed to take a plea that was not available under an Act until it came into force during the pendency of the suit.

The Net Position

The short answer is this: the court can allow such an amendment, but only in exceptional circumstances where the defendant satisfies the court that despite exercising due diligence, the matter could not have been raised before trial commenced. A bare request for amendment after evidence is closed, without a specific averment in the application explaining why the matter could not have been raised earlier, will not be entertained. The proviso is not an absolute bar, but it is a serious threshold — the defendant must actively discharge the burden of showing that non-inclusion was not the result of his own laxity but of circumstances beyond his control, or that the amendment merely elaborates and amplifies a defence already pleaded without introducing a new and inconsistent case. If the amendment does no more than amplify the defence already taken and does not take the plaintiff by surprise, the court retains discretion to allow it, usually upon payment of costs to compensate the plaintiff for the procedural inconvenience.