Hon'ble Mr. Justice S. Talapatra

1. Heard Mr. G.S. Bhattacharjee, Learned Counsel appearing for the petitioners as well as Mr. S. Deb, learned senior counsel for the respondents. By this application filed under Article 227 of the Constitution of India, the legality of the order dated 07.01.2012 as passed by the learned Civil Judge, Junior Division, Udaipur, South Tripura, in Civil Misc. No. 04/2011 in Title Suit No. 04/2010 has been questioned.

2. The brief fact sans unnecessary details which is required to be noticed is encapsulated for the purpose of appreciation.

The petitioners filed the suit being Title Suit No. 04/2010 for declaration that the plaintiffs are the joint owners and possessors of the suit land, declaration that the plaintiffs have joint right, title, interest over the suit land, a decree of permanent injunction against the defendants from disturbing the peaceful possession of the plaintiffs and decree for damage by way of cost etc.

3. The respondent Nos. 2 and 4 filed the joint written statement traversing the pleadings in the plaint and they denied the right, title, interest of the plaintiffs, petitioners herein over the suit land. The learned Civil Judge, Junior Division, South Tripura, Udaipur, on examination of the pleadings, framed issues and thus the trial of the suit commenced. Thereafter, the suit was fixed for recording evidence when the plaintiffs filed a petition under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint and that petition was registered as Civil Misc. No. 04/2011 in Title Suit No. 04/2010.

4. By the petition, the amendment as sought has been described in the schedule of amendment, which is excerpted for appreciation hereinbelow :

(a) In the cause title the "Declaration" word may be inserted after the words "suit for......

(b) In the prayer portion before prayer (a) the following prayer may be inserted as (a1) Decree for a declaration, that the alleged sale deeds executed on 12/3/1999 are void and be cancelled. The plaintiffs are the rightful owner of the suit land.

5. Before proceeding further, it is to be noted that in the Cause Title, already suit for declaration is appearing. Therefore, the said prayer for amendment does not require any consideration. Apart that, in the proposed amendment at schedule (b) the prayer that the plaintiffs are the rightful owner of the suit land are also appearing in the prayer of the suit. As such the said prayer is not required to be incorporated further by way of amendment. Those proposed amendments as indicated are indeces of casual approach of the plaintiffs. After amendment of the Order 6 Rule 17 of the Code of Civil Procedure, 1908 (the 'Code' thereafter in short) in 2002, the said provision has been re-framed in the following manner :

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.

6. The earlier provision has been substituted by the present one making the same more onerous as the proviso to the said Rule 17 in unambiguous terms provides that no application for amendment shall be allowed after the trial 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. Therefore, for the purpose of amending the plaint or the written statement after the trial commenced, the party who seeks for such amendment is under obligation to demonstrate that despite due diligence exercised he could not have raised the matter before the com