SANJIB BANERJEE, J.

The legal issue involved pertains to the proviso introduced in Order VI Rule 17 of the Code of Civil Procedure, 1908 with effect from 2002.

2. A single bench of this court has put up the following question for a decision on reference:

“Whether, in view of Vidyabai vs. Padmalatha [(2009) 2 SCC 409], ‘commencement of trial’, as envisaged in the proviso to Order VI Rule 17 of the Code of Civil Procedure, would mean the date of first hearing, that is the date of framing of issues, or the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments?”

3. Though the facts may not be completely relevant since it is only the legal question that has been referred to by the single bench that has to be answered, but it must be appreciated that no legal issue is decided in the abstract and the decision must always be pegged to a factual context. In this case the civil revision has arisen out of an order partly allowing an application to amend the plaint in an eviction suit. Issues have been framed in the suit. However, the evidence has not yet been received in the sense that no affidavit in lieu of examination-in-chief has yet been filed or, at any rate, no such affidavit was filed prior to the amendment application being filed.

4. The amendment application consisted of two parts: the first part being to correct the valuation of the suit since the admitted rent as indicated in the written statement was more than the rent as indicated in the plaint; and, to include the acquisition of some new premises by the defendant-tenant after the institution of the suit. By the order impugned, the second part of the amendment application has been allowed; but the first has been rejected on the ground that the plaintiffs should always have been aware of the rent payable and since the amendment was sought after the commencement of the trial, such amendment could not be permitted.

5. The opposite party has been served but none appears on her behalf. The opposite party was not represented despite service when the matter was heard by the single bench on August 27, 2018. Notices have been issued to the Union and the State and both the Union and the State have been heard.

6. The trial court made a distinction based on the command of the new proviso to Order VI Rule 17 of the Code under the 2002 Amendment to the Code. Order VI Rule 17 thereof now provides as follows:

“17. Amendment of pleadings.-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

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.”

7. In a sense, the proviso sets out a jurisdictional pre-condition for the exercise of an authority to allow an amendment. Ordinarily, courts have been liberal to allow pleadings to be amended at any stage so that the real disputes between the parties may be determined and there is no multiplicity of judicial proceedings. However, for several decades the provision permitting amendment has been misused to stall a worthy claim or to harass the other side. The proviso now leaves very little room for the court’s discretion. The only element of discretion is the subjective satisfaction of the court that the delay in seeking amendment was not by design and that such delay was occasioned despite due diligence on the part of the applicant. If the trial has been commenced in a case, the parties can no longer amend their pleadings unless the court is satisfied that the amendment sought at the belated stage could not have been sought earlier.

8. The operation of the proviso, apparently, rules out the