The discretion vested in the court to allow amendment after the trial has commenced should be exercised judiciously and not randomly, and the court should consider whether, despite due diligence, the party could not have raised the matter before the commencement of trial.

JUDGMENT :

1. This petition under Article 227 of the Constitution of India is filed by the petitioners against the order dated 01.10.2018 passed below exh. 88 in Regular Civil Suit No. 157 of 2007 by the learned 2nd Additional Senior Civil Judge, Rajpipla, District: Narmada, whereby, the learned trial Judge was pleased to reject the application exh. 88, filed by the present petitioners - original plaintiffs under O.6 R.17 Civil Procedure Code, 1908 (CPC) for amendment in the suit.

2. Facts in nutshell of the case on hand are that the petitioners - original plaintiffs have filed aforesaid suit for declaration and permanent injunction before the civil Court at Rajpipla in the year 2007. In the said they moved an application under O.6 R.17 of the CPC on 13.03.2018 for amendment of plaint, to precise, to add the prayer clause by inserting prayer 3- A, whereby, it was sought to be prayed that, 'the disputed land is in the possession of the plaintiffs and they cultivate the same and take the produces thereof, although, if the Hon'ble Court comes to a conclusion that the disputed land is in possession of the defendants, in that case, it is prayed to get the possession of the said land from the defendants and handover to the plaintiffs'. The said application came to be rejected by the learned trial Judge and hence, this petition.

3. Rule.

4. Heard, learned advocate Ms. Urmi Raval for the petitioners and learned advocate Mr. Apurva R. Kapadia for the respondents.

4.1 The learned advocate for the petitioners submitted that the order passed by the learned trial Court is illegal, perverse and against the settled position of law inasmuch as, the petitioners have filed the suit for declaration and permanent injunction for the suit property as also prayed to restrain the defendants from transferring the suit property on the basis of the false and fabricated power of attorney. It is submitted that the said power of attorney was in the possession of the defendants and hence, in the year 2013, pending suit, the petitioners prayed before the learned trial Court to direct the defendants to produce the said power of attorney and accordingly, by virtue of an order dated 26.02.2018, the said power of attorney came on record. Thus, only in the year 2018, the petitioners - plaintiffs could lay their hands to the power of attorney, which was in the possession of the defendants only. It is further submitted that on going through the power of attorney, it came to the notice of the petitioners that the signature of their mother in the said power of attorney is forged and accordingly, they moved the application exh. 88 for amendment of plaint, however, the learned trial Judge, without appreciating the fact that the petitioners came to know about the same only after production of the power of attorney in 2018, rejected the said application. It is submitted that under the provisions of O.6 R.17 CPC there is no absolute bar for granting amendment after the trial has commenced and if the Court comes to the conclusion that despite due diligence, the party could not have raised the matter before the commencement of trial, the Court can permit such amendment, however, the learned trial Judge, without due appreciation of this position of law, has rejected the application filed by the petitioners - plaintiffs. It is submitted that allowing the application would not, in any way, change the nature of the suit, however, the learned trial Judge has failed to consider such aspect of the matter. Further, the learned advocate earlier representing the petitioners - plaintiffs before the trial Court, had filed the suit hastily, without ascertaining proper information from the plaintiffs - petitioners. Thus, making above submissions, it is prayed to allow the present writ petition and grant amendment as prayed for by setting aside the impugned order.

4.2 Per contra, the learned advocate for the respondents, while heavily opposing the present writ petition and supporting the impugn