K.T. Sankaran, J.

1. The question involved in this Original Petition is whether an application for amendment of the plaint can be maintained in an appeal filed after the enactment of the CPC Amendment Act 22 of 2002. The petitioner filed AS No. 56 of 2010 on the file of the Court of the Additional Subordinate Judge of Kollam challenging the judgment and decree in OS No. 188 of 2002, Munsiff's Court, Kollam. In the appeal, the petitioner filed an application for amendment of the plaint (IA No. 3382 of 2010). The Lower Appellate Court dismissed the application on the ground that as per the proviso to Rule 17 of Order VI of the Code of Civil Procedure, 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. The Court below also held that on the merits, the application for amendment cannot be allowed.

2. Rule 17 of Order VI of the Code of Civil Procedure reads 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."

3. As held by the Supreme Court in Rajesh Kumar Aggarwal v. Modi, 2006 KHC 593 : 2006 (3) KLT 192 : ILR 2006 (2) Ker. 543 : (2006) 4 SCC 385 : AIR 2006 SC 1647 : JT 2006 (3) SC 607 : 2006 (3) MPLJ 215 : 2006 (4) MahLJ 719 and Baldev Singh v. Manohar Singh, 2006 KHC 1060 : 2006 (3) KLT 953 : (2006) 6 SCC 498 : 2006 (3) KLJ 842 : AIR 2006 SC 2832 : 2006 (5) Mah LJ 634 : 2006 (4) MPLJ 1, Rule 17 of Order VI consists of two parts. The first part provides that the Court may, at any stage of the proceedings, allow either party to amend his pleadings and the second part provides that such amendment shall be made for the purpose of determining the real controversy between the parties. The second part is imperative and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.

4. In Salem Advocate Bar Association, T. N. v. Union of India, 2005 KHC 1281 : (2005) 6 SCC 344 : 2005 (4) KLT SN 43 : AIR 2005 SC 3353, the Supreme Court held thus:

"The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision."

5. In Chander Kanta Bansal v. Rajinder Singh Anand, 2008 KHC 4488 : (2008) 5 SCC 117 : 2008 (4) SCALE 546 : AIR 2008 SC 2234 : 2008 (149) DLT 253 : 2008 (2) CHN 202 : 2008 (65) AIC 69 : 2008 (2) GujLH 477 : 2008 (4) MPLJ 269 : 2008 (6) MahLJ 161, the Supreme Court held thus:

"The new proviso lays down that no application for amendment shall be allowed after the commencement of the trial, 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. But whether a party has acted with due diligence or not would depend upon the facts and circumstances of each case. This would, to some extent, limit the scope of amendment to pleadings, but would still vest enough powers in Courts to deal with the unforeseen situations whenever they arise.

13. The entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial,