Rajkumar Gurawara (Dead) through LRs v S.K. Sarwagi & Co. Pvt. Ltd.

• Before the suit, the second defendant's reply notice (18 August 2001) told the plaintiff that it was carrying on mining in the suit lands under a lease from the State. The first defendant's written statement gave the details of the Government Orders transferring the mining lease to the second defendant.
• The second defendant was added to the suit on its own application (11 July 2003). A Commissioner reported (3 December 2003) that it was in possession and mining.
• After the trial, during arguments, the plaintiff applied under O.VI R.17 to add claims for possession and damages. The Additional District Judge allowed it (10 March 2004). The Andhra Pradesh High Court set that order aside in revision (17 August 2004).

1. Should an amendment sought at the stage of arguments be allowed where the plaintiff knew the facts before the suit?

• The proviso to O.VI R.17 (inserted by Act 22 of 2002) bars amendment after the trial has commenced unless the court finds that, in spite of due diligence, the party could not have raised the matter before.
• The plaintiff knew from the reply notice and the written statement that the second defendant was in possession, yet went through the trial without amending. He did not meet the proviso.
• The amendment would also change the nature of the suit (from declaration of mining rights to possession and damages).
• Result: appeal dismissed; the High Court's order refusing the amendment stood.

After the trial has commenced, an amendment is refused unless the party shows that despite due diligence it could not have raised the matter earlier; knowledge of the facts before or early in the suit defeats the plea.