A party seeking to amend a plaint after the commencement of the trial must demonstrate due diligence in not raising the matter earlier.

Shib Sadhan Sadhu, J.

The petitioners by filing the instant application under Article 227 of the Constitution of India seeks to set aside the order No.35 dated 26.03.2014 passed by the Learned Civil Judge (Junior Division), 1st Court, Howrah in Title Suit No.95 of 2011 whereby and where under he rejected the petition under Order 6, Rule 17 of the Code of Civil Procedure filed by the petitioners/plaintiffs.

2. Mr. Souri Ghosal, Learned Counsel appearing on behalf of the petitioners, contended that the Learned Judge has acted illegally and with material irregularity in passing the impugned order refusing the prayer for amendment of the plaint made by the petitioners/plaintiffs which is absolutely necessary for the purpose of determining the real questions in controversy between the parties. He further contended that the Learned Judge failed to appreciate that the plaintiff had no knowledge of such fact at the time of institution of the suit and that they had gathered such knowledge during pendency of the suit. Further, the trial of the suit has not yet been commenced. Therefore, according to him the approach made by the Learned Judge is totally erroneous and the impugned order is liable to be set aside. He cited the decisions reported in AIR 1969 SC 1267 (Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon), 2012(1) CLJ (Cal)322 (Sasanka Sekhar Bhowmic & Ors. v. Sri Meghnath Tanti & Ors.) and 2012 (3) CHN (CAL) 350 (Doli Karmakar v. Ranjan Kumar Sadhukhan) in support of his contention.

3. Mr. Debasish Roy, Learned Counsel appearing on behalf of the O.P. No.1, on the other hand, contended that since after the introduction of the Proviso to Order 6, Rule 17 C.P.C. with effect from 1st July, 2002, the Court cannot allow an application for amendment 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 the trial. Therefore, the discretion is absolutely vested with the Court to allow an application for amendment after commencement of the trial if it is satisfied that the party could not have raised the matter earlier despite exercise of due diligence. In the instant case, the petitioners/plaintiffs did not disclose any reason far to speak of sufficient or justifying reason for such belated approach which could inspire confidence and satisfaction of the Court for such failure to raise the facts in spite of his diligence before commencement of trial. Thus, the Learned Judge was quite justified in rejecting the prayer for amendment and no fault can be found with such rejection order. He placed reliance on the decision of the Hon'ble Supreme Court reported in AIR 2009 SC 1433 (Vidyabai & Ors. v. Padmalatha & Anr.) in order to substantiate his contention.

4. Having regard to the rival contention advanced by the Learned Counsel appearing for the parties in the light of the decisions placed by them, I would like to say at the very outset that by the Amendment of Order 6, Rule 17 C.P.C. with effect from 1st July, 2002 an embargo has been put upon the Court in allowing an application for amendment after the commencement of trial. Now the Court has no jurisdiction to allow an application for amendment unless it comes to the conclusion that in spite of due diligence, the party could not have raised the matter before commencement of the trial. It is needless to mention that whether the party seeking amendment has acted with due diligence or not would depend upon the facts and circumstances of each case. Therefore, I think it better and profitable to look into the factual background of the case.

5. The plaintiffs/petitioners instituted the suit being T.S. No.95 of 2011 for declaration of their title in the suit properties and for further declaration that the defendant/O.P.No.1 has not acquired any right, title interest in the suit properties etc. and for permanent injunction and other reliefs. Thereafter on 01