The main legal point established in the judgment is that the trial in a civil suit commences from the date of filing of affidavits in lieu of the examination in chief of the witnesses, as interpreted from the proviso to Order-VI Rule-17 of the Code of Civil Procedure, 1973.

U.D. Salvi, J.

1. This Writ Petition has been referred to us to answer the following questions of law;

i] Whether the view taken by learned Single Judge of this Court in “ AjitNarsinha Talekar Vs. Smt. Nirmala Wamanrao Kakade and others” 2010 (5) Mah.L.J. 481, “ Bhagwandas Kanhaiyyalal Bubna Vs. Shyamsundar Wasudeo Bubna and others” (2010 (1) Bom.C.R. 218, and “ Vinods/o Khimji Lodaya and another V. The Chief Executive Officer and others (Civil Revision Application No. 123/2009), is legal and proper and the trial in civil suit commences on the date of the framing of the issues or that it commences from the date of filing of affidavit in lieu of examination-in-chief?

ii] Whether proviso appended to Order-VI Rule-17 of the Code of Civil Procedure is attracted after framing of the issues or it will come into play only after stage of filing of affidavit/s in lieu of examination-in-chief of witnesses?

2. Proviso to Order-VI Rule-17 of the Code of Civil Procedure, 1973 reads as under:

“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.”

It mandates that no application for amendment shall be allowed after commencement of trial, 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. When the trial in a civil Suit commences, whether on the date of framing of issues or on the date of filing of affidavit in lieu of examination-in-chief of witnesses, is the question which needs to be answered in the present proceedings to answer the questions posed.

3. Learned Single Judge of this Court while examining the controversy arising out of rejection of amendment application moved by the petitioner/ plaintiff by learned Trial Judge on the ground that it was belatedly filed, more particularly after the settlement of issues, found himself not in agreement with the view taken by the coordinate benches of this Court in the cases referred to in question No. 1 above in light of the judicial precedents cited by the rival parties; and of necessity to rule out the differences of opinion between the benches has made the present reference vide order dated 6/1/2011.

4. A perusal of the order dated 6/1/2011 passed in the present petition reveals that the petitioner placed reliance on the following judgments:

i] AjitNarsinha Talekar Vs. Smt. Nirmala Wamanrao Kakade and others” 2010 (5) Mah.L.J. 481,

ii] BhagwandasKanhaiyyalal Bubna Vs. Shyamsundar Wasudeo Bubna and others” (2010 (1) Bom. C.R. 218, and

iii] Vinods/o Khimji Lodaya and another V. The Chief Executive Officer and others (Civil Revision Application No. 123/2009)

It is in this context, learned Single Judge brought under judicial scanner the following judgments delivered by the Hon’ble Apex Court:

i] Vidyabai and others V. Padmalatha and another; (2009 AIR SCW 899),

ii] Kailash V. Nanhku and others; (2005) 4 SCC 480 iii] Ajendraprasadji N. Pande and another V. Swami Keshavprakeshdasji N. & others; (2007 AIR SCW 513)

5. Learned Single judge reasoned that the stage of framing of the issues is after completion of the pleadings and the other procedurual formalities including the amendment of pleadings; and the issues are framed in order to navigate the direction in which the trial shall proceed and the direction of the trial is settled on the date on which the issues are finalized and framed. Learned Single Judge for a moment also reflected on the phenomenon of commencement of trial in a criminal case in an effort to draw analogy between framing of charge in a criminal case and framing of issues in civil case. Learned Single Judge was ultimately of the opinion that the position is made crystal clear in a case of Kailash V. Nanhku and others (supra), and the law laid down therein is not off set by the judgment delivere