( 1 ) CM Nos. 11177/2006 and 11178/2006 these applications have been filed to bring on record the legal heirs of the deceased respondent who passed away on 10-9-2005. The legal heirs are set out in para 2 of the application. Since the factum of the demise of the respondent was not known earlier and only came to be known in the proceedings in Court the application has been filed for condonation of delay. The legal heirs have been served but none has put an appearance. For the reasons stated in the application, the delay in filing the application is condoned and the legal heirs as set out in the application are brought on record. Applications are allowed. Amended Memo of parties is taken on record. CM (M) No. 580/2003

1. The petitioners filed a suit for declaration, mandatory injunction and damages against the respondent alleging that the respondent is the step-brother of the petitioners. The suit property is stated to have been purchased by the petitioners in the year 1992. The original respondent herein has stated to be residing gratis in the suit property but failed to vacate the same on being asked to do so. Issues were framed in the suit but before evidence could be led, the petitioners filed an application seeking to amend the plaint to incorporate the relief of possession. This amendment has been disallowed by the impugned order dated 20-5-2003.

( 2 ) LEARNED counsel for the original respondent Mr. R. K. Saini states that he has no instructions on behalf of the legal representatives. The legal representatives have been served but have failed to enter appearance and are thus proceeded ex parte.

( 3 ) ON hearing learned counsel for the petitioner, I am of the considered view that the trial Court failed to exercise jurisdiction vested in it by law while dismissing the application for amendment of the plaint in terms of the impugned order. The suit as originally framed also was for mandatory injunction but the petitioner rightly sought to incorporate the relief of possession by paying court-fee on the same since it is the case of the petitioner that the original respondent was in possession and the petitioner was seeking possession from the respondent. The only reason given by the trial court for rejection of the amendment is that the application has been filed after framing of issues and that trial is a consequence of framing of issues. The framing of issues was treated as a stage of trial in the suit.

( 4 ) THE relevant provision in this behalf reads as under : "order VI pleadings GENERALLY 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 the due diligence, the party could not have raised the matter before the commencement of trial. "

( 5 ) A perusal of the aforesaid provision shows that the Court has the discretion at any stage of the proceedings to allow alteration of pleadings but no application for amendment is to be allowed after the trial is commenced unless the Court comes to the conclusion that in spite of the due diligence the party could not have raised the matter before the commencement of trial.

( 6 ) SETTLEMENT of issues finds place under Order 14 of the Code of Civil Procedure, 1908 (hereinafter referred to as, 'the said code' ). Rule 1 of Order 14 of the said Code provides that issues on all material proposition of fact or law would be framed. Rule 4 of Order 14 of the said Code permits a Court to examine witnesses or documents before framing of issues to facilitate such framing of issues. The next stage in the contested suit is provided under Order 16 for summoning and attendance of witnesses.

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