TMI Blog2005 (7) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaint, was filed in I.A. No. 126 of 2004, which was opposed, contending that the proposed amendment is impermissible under law, if allowed, that will not only change the basic structure of the case, but also would change the character and nature of the claim also. Despite objections, the learned Additional District Munsif, in her detailed order, seeking aid from the rulings of this Court, as quoted by either counsel, and considering the dominant purpose of Order 6 Rule 17 CPC, came to the conclusion that in order to solve the problems between the parties, in the same suit, the proposed amendment should be permitted. But, at the same time, because of the inordinate delay and the stage of the petition filed, she allowed the application on payment of costs of ₹ 1,000/=, which is under challenge in this revision. 3. Heard both. 4. The main thrusts of the learned counsel for the revision petitioner are that the trial Court has not considered the effect of the amendment introduced in Order 6 Rule 17 CPC, viz. proviso, which bars this kind of amendments and that the trial Court also failed to consider the scope of the amendment, which certainly, if allowed, would change the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present amendment petition was filed, aiming to include more prayer, more or less changing the nature of the suit, the fact being the original suit was for redemption and the amendment, now sought for, is for declaration of title and recovery of possession. Thus, it is seen, only after the commencement of the trial, the amendment application has been filed, thereby bringing this amendment application within the four walls of Order 6 Rule 17 proviso, which came into force on and from 1.7.2002, thereby making the proviso applicable, and there cannot be any dispute in this regard also. 8. The suit is based upon an un-registered mortgage deed dated 7.2.1996, under which it is said, the owner had mortgaged the property, after receiving a sum of ₹ 10,000/=. I am not going into the merits of the document and passing of consideration, in this revision. When the revision petitioner/defendant has filed the written statement, the same was opposed on the ground that the suit filed for redemption, on the basis of an inadmissible document, is not maintainable, and therefore, the question of discharging the mortgage, making an endorsement on the same, does not arise. Thus, the plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endment at any stage of the proceedings. But, the said power is curtailed or it could be said, a ban is imposed, and therefore, the wide discretion, which was available originally under Order 6 Rule 17 CPC, cannot be invoked, as a matter of right, only under the consideration that the amendment shall be allowed for the purpose of determining the real questions, in controversy, between the parties, in the same suit. The Legislators thought it fit that because of the subsequent amendments allowed, taking into consideration that the dispute should be decided in the same suit, the parties are taking advantage to file the amendment applications at any stage thereby delaying the proceedings, and hence an embargo should be placed and in this view alone, the proviso is introduced, more or less barring the amendment application, after the commencement of the trial. Here also, the Legislators had the wisdom that if total ban is imposed, the rights of the parties would be prejudiced and in this view, an exception is built-in, in the proviso itself. A party who is aware of his rights and who is aware of the fact that his rights are questioned by the other side, must include all the reliefs, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession ,with consequential modification regarding Court Fee provisions and payment of Court Fee. No pleading is sought to be introduced to suit the prayer for declaration and possession. By going through the affidavit, I am unable to see any case that this plaintiff will come within the meaning of 'a person, who had exercised due diligence' and unable to raise the proposed amendment before the commencement of the trial. In fact, as said above, because of the defence already taken by the revision petitioner, even without exercising so much of diligence, one can easily understand that declaration and possession must be necessary to get the property from the defendant, since the defendant had questioned the admissibility of the un-registered mortgage and also challenged the recovery of possession, even. Thus, on facts, it is well demonstrated by the pleadings of the plaintiff himself that the plaintiff/respondent, certainly, will not come within the exception available in proviso to Order 6 Rule 17 CPC, and this being the position, then, naturally, the proviso comes into operation, which bars, mandatorily also, that no application for amendment shall be allowed, after the tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Judge has not properly considered Order 6 Rule 17 proviso, thereby she has offended and infringed the law and wrongly exercised her jurisdiction and if that kind of order is allowed to stand, that will cause prejudice to the other side, since there is no possibility for the revision petitioner to nullify the same, though he may have the chance to defend the case, based on amendment. 16. In P. Subba Naicker v. Veluchamy Naicker and Three Ors. (2004 (2) CTC 742), this Court has considered the permissibility of amendment of plaint, after commencement of trial, and came to the conclusion that 'the amendment of plaint cannot be allowed, after commencement of trial, unless the Court comes to the conclusion that in spite of due diligence, the plaintiff could not raise the plea before commencement of trial'. It is also held that 'the petition filed, after the commencement of trial, not disclosing the exception available under Order 6 Rule 17 CPC, is impermissible, in view of the proviso, which is the uniform view of this Court also, subsequently. 17. As rightly submitted by the learned counsel for the revision petitioner, placing reliance upon two decisions of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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