The petitioner, who is defendant no.2 in Probate Case No.91 of 2015, is aggrieved of order dated 06.06.2018 by which his application under Order-VI Rule l7 CPC for amendment in his written statement/objection has been declined.

2. Briefly stated, Probate Case No.91 of 2015 has been filed by the brother of the petitioner for probate of Will dated 05.02.2011. The plaintiff has asserted that their father, the testator namely, Bir Kishore Prasad, has three sons-the plaintiff himself and the defendant nos.1 and 2; the defendant no.3 is their sister. The testator died on 24.07.2012 at his residence at Ranchi but before his death he has executed his last Will dated 05.02.2011. In the probate case the defendant no.2 has filed his objection taking a specific plea that Will dated 05.02.2011 is a forged and fabricated document. During the trial, after the plaintiff’s evidence was closed the petitioner has filed an application under Order-VI Rule 17 CPC on 28.11.2017 for amendment in his objection for incorporating a new paragraph below para-23 in his objection. It reads as under:

“That Bir Kishore Prasad as per promise made at the time of oral family settlement with consent of his three sons with respect to his property of Plot no.299/C, Road no.-1/A, Ashok Nagar, Ranchi had actually executed a WILL dated 25.11.2011 which also duly attested by Mukul Prasad and Sanjay Kumar Singh, as attesting witness, who were also allegedly stood as attesting witness to the alleged WILL dated 05.02.2011 which is subject matter of this suit, within the knowledge of his two sons namely Ashok Kumar, the petitioner and Raj Kumar, opposite party no.1 also mentioning therein of Ashok Kumar was allotted in the northern side of the Plot no.299/C along with 2(two) garage in the ground floor as well as rock garden contiguous to it and allotted and given the southern side flat of the twin unit main building standing on portion of Plot no.299/C with lawn on extreme southern side of main building and one garage on the ground floor of the building standing on the north western side twin storied building of Plot no.299/C, to Deepak Kumar and likewise allotted and given to Raj Kumar northern side flat of the twin units single storied main building with right hand side garage standing in the ground floor of two storied building in the north western Plot No.299/C.”

3. Order-VI Rule 17 CPC which permits amendment in the pleadings at any stage of the proceedings is founded on the principles of equity, justice and good conscience. It provides that the court may permit either party to amend his pleadings at any stage of the proceedings, however, Rule 17 CPC itself puts a limitation on powers of the court to permit amendment in the pleadings. It says that if amendment in the pleadings is necessary for the purpose of determining the real question in controversy between the parties, all amendments in the pleadings can be permitted on such terms as the court may deem just and proper. It is not that in all cases where other party can be suitably compensated or that the amendment would not change the nature of the suit or that trial in the suit has yet not commenced, parties can be permitted to amend their pleadings. It is only such amendment which shall have a co-relation to the initial pleadings of the parties and which is necessary for adjudicating the real question in controversy that can be permitted.

4. After Order-VI Rule 17 CPC was amended by the Code of Civil Procedure (Amendment) Act, 2002 and a proviso was inserted therein, further limitation has been put on powers of the court to permit amendment in the pleadings. It provides that no application for amendment shall be allowed after the trial has commenced and by now it is well-settled that proviso to Order-VI Rule 17 CPC is mandatory. However, proviso to Order-VI Rule 17 CPC carves out an exception. It provides that if inspite of due diligence the matter could not have been raised by the parties before the commencem