Code of Civil Procedure, 1908 – Ord. VI r. 17 – Amendment of pleadings – When allowed – On facts, suit for partition and separate possession – When the matter reached the stage of arguments, application for amendment of the plaint filed by the respondents No. 1 and 2, seeking relief of declaration of the earlier compromise decree being null and void, pleading oversight and mistake, on the part of the respondents No. 1 and 2 – Trial court dismissed the application, however, the High Court allowed the same – Correctness:

Held: Application for amendment may be rejected if it seeks to introduce totally different, new and inconsistent case or changes the fundamental character of the suit – Ord. VI r. 17 prevents an application for amendment after the trial has commenced unless the Court comes to the conclusion that despite due diligence the party could not have raised the issue before the commencement of trial – Important factor, to be considered is as to whether the amendment would cause prejudice to the other side or it fundamentally changes the nature and character of the case or a fresh suit on the amended claim would be barred on the date of filing the application – On facts, the relief sought would certainly change the nature of the suit, which may be impermissible – If the amendment is allowed, it would certainly prejudice the appellant – What cannot be done directly, cannot be allowed to be done indirectly – Application for amendment was filed 5 years after passing of the compromise decree, which is sought to be challenged by way of amendment – Limitation for challenging any decree is three years – As with the passage of time, right had accrued in favour of the appellant with reference to challenge to the compromise decree, the same cannot be taken away on account of delay in filing the application – Even if on any ground the amendment could be permitted, still no relief could be claimed as all the parties thereto were not before the Court in the suit in question – Impugned order passed by the High Court is set aside – Application for amendment of the plaint is dismissed. [Paras 8-14]

Code of Civil Procedure, 1908 – Ord. 23 – Compromise decree – Challenge to, when:

Held: Appeal is not maintainable against a consent decree – No separate suit can be filed – Consent decree operates as an estoppel and binding unless it is set aside by the court by an order on an application under the proviso to Order XXIII r. 3 – Only remedy available to a party to a consent decree is to approach the Court which recorded the compromise as it was opined to be nothing else but a contract between the parties superimposed with the seal of approval of the Court. [Para 7]