The amended provisions of the Amendment Act 2002 apply only if the plaint or written statement was filed before the amendment came into force on 1.7.2002. The proviso to Rule 17 of Order 6 restricts the power to amend pleadings once the trial has commenced.

JUDGMENT :

Tarlok Singh Chauhan J.

Since common question of law and fact arises for consideration, therefore, all these petitions are taken up together for decision.

2. The petitioners are the defendants and had moved applications for amendment of the written statement-cum-counter-claim which has been rejected by the learned Court below in terms of proviso to Rule 17 of Order 6, wherein it is stipulated 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 the trial.

3. Learned counsel for the petitioners has argued that the aforesaid proviso would only apply in case the suit had been instituted after the amendment carried out in the Code of Civil Procedure on 1.7.2002 and would not apply to the instant suit, which had been instituted prior to the said date.

4. On the other hand, Mr.Mohit Thakur, learned counsel for the respondents has vehemently argued that no doubt the suit was instituted prior to coming into force of the Amendment Act, but then the written statement-cum-counter-claim admittedly was filed after the amendment had already came into force. According to him, the Amendment Act uses the expression in respect of any pleadings and not ?suit? and therefore, the mere fact that the suit has been instituted prior to the amendment would be of no consequence.

I have heard the learned counsel for the parties and have gone through the records of the case.

5. Before adverting to the relative merits of the case, it would be worthwhile to reproduce Section 16 (2) (b) of the (Amendment Act 2002), which reads thus:-

?16 (2) (b). the provisions of rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by section 16 of the Code of Civil Procedure (amendment) Act, 1999 (46 of 1999) and by section 7 of this Act shall not apply to in respect of any pleadings filed before the commencement of section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and section 7 of this Act.?

6. Order 6 Rule 17 CPC reads thus:-

?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.?

7. Evidently the expression employed in Section 16 (2) (b) of the Amendment Act with regard to applicability of the amending provisions is in respect to ?any pleadings? and nowhere is the expression ?suit? or ?plaint used.

8. Pleadings is defined under Order 6 Rule 1 in the following terms:-

?Pleadings.---?Pleadings? shall mean plaint or written statement.?

9. A conjoint reading of Section 16 (2) (b) of the Amendment Act with Order 6 Rule 17 C.P.C. leaves no room for doubt that the aforesaid amended provisions would only apply in case the plaint or written statement as the case may be are filed before the amendment came into force i.e. 1.7.2002.

10. Now in so far as the interpretation of proviso to Rule 17 of Order 6 is concerned, the party has to satisfy the Court that it could not have discovered that ground which was pleaded by amendment, in spite of due diligence. No doubt, Rule 17 confers power on the Court to amend the pleadings at any stage of the proceedings. However, the proviso restricts that power once the trial has commenced.

11. Lastly, it may be necessary to add that the proviso to Order 6 Rule 17 provides that amendment of pleadings shall not be allowed when trial of the suit has already commenced. The record of the instant case reveals that not on