An amendment of a written statement may be allowed at any stage of the proceedings if it is necessary for the purpose of determining the real questions in controversy between the parties and does not add any new matter, even if the trial has commenced, provided that the party seeking the amendment has shown due diligence.

Siddhartha Chattopadhyay, J.

Calling in question the legal pregnability of the order dated 25.06.2015 passed by Civil Judge (Junior Division), 1st Court, Barasat in Title Suit No. 343 of 2008, the petitioner/defendant has filed this application under Article 227 of the Constitution of India.

2. The petitioner/defendant expressed his anguish contending inter alia that the learned Court below failed to appreciate that in case of amendment of written statement, Court would be more liberal in allowing such amendment, that the learned Court below fell in error in not appreciating the fact that the gist of the proposed amendment has already mentioned in paragraph 23 of his written statement. According to him, purpose of incorporation of proviso in this statute was to curtail delays and not to show exit door to a litigant from the litigation proceeding. Ventilating his such grievances he has prayed for setting aside the impugned order passed by the learned Court below.

3. At the time of hearing, learned Senior Counsel Mr. Shaktinath Mukherjee has contended that amendment of written statement has to be considered in a more liberal manner than that of plaint. According to him, if any fact is mentioned in the original written statement then for the purpose of facilitating that adjudication, an amendment can be done by elaborating his case, which is not a new one. He further submitted that Order 6, Rule 17 starts with the word "the Court may at any stage of the proceeding allow either party to alter or amendment of pleading in such manner and on such terms as may be just.". So, according to him, if it is necessary for adjudication of the real controversy involved in the suit, Courts power is not limited for rendering effective justice. He has relied upon the decisions reported in AIR 1964 Supreme Court 11 (Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala and others), AIR 2003 Supreme Court 2284 (Punjab National Bank v. Indian Bank and another), (2005) 13 SCC 89 (Sajjan Kumar v. Ram Kishan), (2007) 5 SCC 602 Usha Balashaheb Swami and Others v. Kiran Appaso Swami and Others). Referring those judgments he contended that where an amendment is sought which merely clarifies an existing pleading and does not in substance add to or alter it, it has never been held that the question of bar of limitation is one of the questions to be considered in allowing such clarification of matter already contained in the original pleading. According to him, the decision reported in AIR 1964 Supreme Court 11 was considered in the decision reported in AIR 2003 Supreme Court 2284. Thereafter, the Hon'ble Apex Court held that matter already contained in the original pleading can be clarified. Referring the judgment reported in (2005) 13 SCC 89 he has submitted that if there is some sort of deficiency so far as diligence is concerned, in that case also if proposed amendment was found necessary, the Court will permit the amendment to be made. He has also drawn my attention referring the decision reported in (2007) 5 SCC 602 and submitted that the technicality of law should not be strictly considered at the cost of rendering effective justice.

4. Learned Counsel Mr. Arnab Roy appearing on behalf of the respondent made his erudite submission that the proposed amendment was rejected by the learned Court below on appropriate grounds and for which order of the learned Trial Court should not be disturbed. He has made a forceful argument challenging his adversary that all those decisions referred to by the petitioner are relating to the main part of Order 6, Rule 17 and not covering proviso of that clause. According to him, when a proviso is added with a main clause that cannot be separated or isolated from the main section. According to him, the section including proviso has to be read as a whole. He cited decisions reported in (2006) 12 SCC 1 (Ajendra Prasadji N. Pandey and Another v. Swami Keshav Prakash Dasji N. and Others), (2008) 5 SCC 17 (Chander Kanta