The main legal point established is that the trial commences not on framing of the issues but when a party files an affidavit of himself or his first witness in lieu of examination in chief.

ORAL ORDER

Rule, returnable forthwith.

2. Mr. Kumbhakoni appears for respondent nos.1 to 3 and waives service.

3. By consent taken up for hearing.

4. By this petition, the petitioner challenges the order dated 7 August 2009 passed by the 5th Joint Civil Judge, Junior Division, Solapur rejecting the application made by the petitioner (original plaintiff) for amendment of the plaint.

5. The petitioner (landlord) filed a suit for possession against the respondents under the provisions of the Maharashtra Rent Control Act, 1999, inter alia, on four grounds, viz. (i) the respondents were not using the suit premises for residence, (ii) the respondents had not paid the rent from 1 April 2004 and they were defaulters, (iii) the petitioner wanted to demolish the existing building and construct a new building thereon and as such the petitioner required the suit premises bonafide for the purpose of demolition and reconstruction, and (iv) the suit premises were given on rent for residence and the respondents were using the premises for carrying on business of running an eating house (Khanaval).

6. In the plaint, the petitioner had not given all the requisite details about his bonafide requirement regarding demolition and construction of a new building. He, therefore, filed an application for amendment of the plaint to incorporate the details. By the proposed amendment, he sought to plead that he had got the plans of new construction prepared from an architect. He also proposed to plead that the petitioner would offer new premises in the reconstructed building to the respondent. The application was rejected by the trial court. Aggrieved petitioner is before this Court.

7. The order of rejection of application is very laconic and is quoted below in verbatim.

"Read the application and say. Heard the counsel of plaintiff. Amendment sought will change the nature of the suit. Hence application is rejected."

To say the least, the learned Judge does not appear to have applied his mind to the application for amendment. The petitioner had already pleaded in the original plaint that he required the suit premises for the purpose of demolition and erection of a new building thereon. All that he wanted to plead by way of an amendment was to give details about that requirement and make an offer that he was willing to offer to the respondents new premises in the reconstructed building. The details were only elaboration of the ground and cannot be said to be a new ground so as to change the nature of the suit. Consequently, the order is required to be set aside.

8. Learned counsel for the respondents, however, submitted that the trial had commenced and, therefore, the application could not be allowed in view of proviso to Order 6 Rule 17 of the Code of Civil Procedure (for short "the Code"). Proviso to Order 6 Rule 17 reads thus:-

"Provided that 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."

No doubt, the proviso clearly says that after the commencement of the trial the application for amendment cannot be allowed except in a case where the Court comes to the conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. Learned counsel for the petitioner, however, disputed that the trial had commenced. Counsel for the parties stated before me that issues have been framed but recording of evidence has not commenced. The petitioner has not even filed an affidavit in lieu of examination in chief of himself or any of his witnesses.

9. The question required to be considered is: Whether the trial commences on framing of the issues or whether it commences when an affidavit of any witness in lieu of examination in chief is filed after framing of the issues?

10. Relying upon a decision of the Supreme Court in V