IMPORTANT POINT
Amendments to pleadings after the commencement of trial must be supported by a finding of due diligence; failure to establish this finding renders the amendment impermissible.

JUDGMENT :

1. The legal representatives of the defendant in O.S.No. 18/2004 of the Additional Subordinate Court, Thalassery are the petitioners before this Court. The suit was filed for a decree of specific performance of sale agreement and in the alternative, for the return of the advance amount with interest and costs from the defendant. Originally, the suit was dismissed by judgment and decree dated 31.07.2009. Aggrieved by the judgment and decree, R.F.A.No. 773/2009 was filed by the plaintiffs. By Ext.P1 judgment dated 21.11.2016, this Court set aside the dismissal of the suit and remanded the matter back for consideration by the trial court with the plaintiff's liberty to amend the plaint appropriately. A liberty was also granted to the plaintiff to implead additional parties if found necessary for a complete and effective adjudication. This was granted, especially in the light of the specific assertion of the defendants by pleading discharge of the amount borrowed by him from the plaintiff. After the remand of the suit by Ext.P1 judgment, the plaintiff sought amendment of the plaint. Accordingly, the amendment was granted and additional pleadings were incorporated after paragraph 5(a) of the plaint.

2. Later, the case was finally heard on 01.11.2017 and posted for judgment on 08.11.2017. After the parties had completed their arguments, the plaintiffs seem to have realized the lacuna in the case projected before the Court and decided to file an application for amendment as I.A. No. 1556/2017. The application for re-opening of the evidence was also made as evident from Ext.P2. The petitioners/defendants objected to the claim of the plaintiffs by raising a plea that the amendment now sought for is against the proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908. According to them, the plaintiffs cannot be permitted to change the nature of the suit by amending the original cause of action and the reason for delay in making the application is not explained by the plaintiffs. However, the Additional Subordinate Court, Thalassery by order dated 15.11.2017 granted the amendment and allowed the application on condition that the petitioners shall pay Rs.500/-as costs to the respondents/defendants on or before the next hearing date and failing which applications shall stand dismissed. Aggrieved by the said order, the petitioners have invoked the superintending jurisdiction of this Court under Article 227 of the Constitution of India.

3. I have heard Sri.Grashious Kuriakose, the learned Senior Counsel assisted by Adv. Sri.George Mathews and Adv.Sri.K.P.Hareendran, the learned counsel appearing for the 3rd respondent.

4. I have considered the rival submissions raised across the Bar.

5. Order VI Rule 17 of the Code of Civil Procedure, 1908 reads as follows:

“Order VI - PLEADINGS GENERALLY

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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.”

It may be noticed that the proviso to Order VI Rule 17 was amended by Act 22 of 2002 with effect from 01.07.2002. Going by the proviso to Order VI Rule 17, before allowing an application for amendment after the commencement of the trial, the trial court should have entered a finding that, even after due diligence, such amendment could not be made by the party. Question before this Court is whether the trial court has discharged its obligation and whether such amendment is permissible under law.

6. It is pertinent to note that, as per Ext.P1 judgment of the Division Bench, an opportunity wa