Harish Tandon, J.

An application for amendment of the plaint taken out at the stage of trial is rejected by the Trial Court though not on the ground that in there no sufficient explanation on due diligence.

2. Admittedly, the suit was instituted in the year 2009 and, therefore, the proviso inserted to Order 6, Rule 17 of the Code of Civil Procedure has its fullest applicability.

3. The plaintiff/petitioner filed a suit for partition and separation of shares. The suit went on trial and in course of the cross-examination, the application for amendment was taken out for incorporating certain averments relatable to a relief in the form of recovery of possession. The explanation offered in the said application is that in course of evidence it transpires that the defendants claimed the possession and, therefore, it becomes necessary to claim the recovery of possession.

4. The defendants were all along claiming the possession in respect of suit premises so the plaintiff. Though in there no absolute embargo created by introducing proviso to Order 6, Rule 17 of the Code to allow the amendment application taken out after the commencement of trial, but a further duty is cast upon the Co