1. This revision filed by the defendant in O.S.No.35 of 2007 on the file of the Court of Principal Junior Civil Judge, Chodavaram, challenges the order dated 13.07.2011, allowing I.A.No.273 of 2011 in O.S.No.35 of 2007 filed by the plaintiff/respondent herein under the provisions of Order VI Rule 17 of the Code of Civil Procedure (for short ‘C.P.C’). Heard Sri G. Rama Gopal, learned counsel for the petitioner. Despite service of notice, none appears for the respondent. The respondent herein instituted O.S.No.35 of 2007 for specific performance of an agreement of sale alleged to have been executed by the petitioner. In the said suit, the respondent filed the present Interlocutory Application under Order VI Rule 17 C.P.C., seeking amendment of the description of the plaint schedule property by way of insertion of Survey Number and Patta Number. The learned Judge allowed the said amendment by way of the order impugned in the instant revision.

It is contended by the learned counsel for the petitioner that the order impugned is erroneous, contrary to law and opposed to the very spirit and object of the provisions of Order VI Rule 17 C.P.C; that in view of the prohibition contained under proviso to Order VI Rule 17 C.P.C., the present application is not maintainable after commencement of trial in the absence of due diligence on the part of the plaintiff; the judgment of the Hon’ble Apex Court in the case of Puran Ram v. Bhaguram (AIR 2008 SUPREME COURT 1960) is not applicable in the facts and circumstances of the case. In the above background, now the issue that emanates for consideration of this Court is:

“Whether the order under challenge, in the facts and circumstances of the case, is sustainable and tenable and whether the same is in accordance with the provisions of Order VI Rule 17 C.P.C?”

Admittedly, the respondent herein filed the present application after commencement of trial and according to proviso to Order VI Rule 17 C.P.C., it is incumbent and obligatory on the part of the person applying to show that despite exercising due diligence, such application could not be filed before commencement of trial. In the affidavit filed in support of the application, this Court does not find any such foundation laid by the respondent in the said direction and in the absence of compliance of such a statutory mandate, the application filed by the respondent cannot be maintained.

Another significant aspect, which needs to be noted, is that the Court below for holding in favour of the plaintiff/respondent herein, placed reliance on the judgment of the Hon’ble Apex Court in the case of Puran Ram v. Bhaguram.

According to the learned counsel for the petitioner, the said judgment of the Hon’ble Apex Court is not applicable to the facts and circumstances of the instant case. In the said pronouncement, the Hon’ble Apex Court while dealing with the provisions of Section 26 of the Specific Relief Act, 1963 (for short ‘the Act’) held in favour of maintainability of such applications for amendment of schedule. In this context, it may be apt to reproduce the relevant paragraphs of the said judgment, which read thus:

“10. Keeping the arguments advanced by the learned counsel for the parties in mind, let us now consider whether the prayer for amendment of the plaint and the agreement, in the facts and circumstances of the case, could be allowed or not. So far as the prayer for correcting or rectifying the agreement in respect of a part of the description of the suit property is concerned, it would be appropriate to look into the provisions made in Section 26 of the Specific Relief Act, 1963. Chapter 3 of the Specific Relief Act, 1963 specifically deals with rectification of instruments. Section 26 provides as to when an instrument may be rectified and reads as under:-

"26. When instrument may be rectified.

(1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing (not being the articles of association of