Amendment Act, 1999 enforced on 31.6.2002 as such could not be applicable in the case of plaint or W.S. filed prior to that date.

(Revision under Article 227 of the Constitution of India against the fair and decreetal order, dated 27.08.2004, made in I.A.No.380 of 2004 in O.S.No.513 of 1999 on the file of II-Additional District Munsif, Nagercoil.) Heard the learned counsel appearing for the parties.

2. The plaintiffs have filed the present civil revision under Article 227 of the Constitution of India challenging the order, dated 27th August, 2004 passed by the trial court, rejecting their application for amendment of the plaint. Initially, the suit was filed for permanent injunction. After commencement of trial, the plaintiffs filed an application for the amendment of the plaint praying that their title should be declared and a decree for recovery of possession should be granted in their favour. Such application was rejected by the trial court by placing reliance on the decision of this Court reported in 2004(2) CTC 742 (P.Subba Naicker vs. Veluchamy Naicker) and observing that after the Amended C.P.C. had come into force, no amendment of the plaint can be allowed after commencement of the trial unless the court comes to the conclusion that inspite of due diligence the plea could not have been raised before the commencement of the trial. The trial court also stated that such petition was filed to drag the proceedings.

3. Order VI, Rule 17 CPC, as it originally stood, permitted amendment of pleadings at any stage. However, under the Code of Civil Procedure (Amendment) Act, 2002, which came into force with effect from 01.07.2002, a proviso was added to Order VI, Rule 17. The proviso which was added is to the following effect.

"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 the trial."

4. The scope of aforesaid amended provision was considered by a learned Judge of this Court in the decision reported in 2004(2) CTC 742. It was observed therein in paragraph 4 as follows:

"4.Apart from the above factual details,it is to be noted that after the Amendment Act, 2002 (wich came into force with effect from 1.7.2002), 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. ........In the light of the proviso to Rule 17 of Order 6 of the Code of Civil Procedure and of the fact that the petitioner has not satisfied the Court that he is entitled to file such a petition even after the commencement of the trial, as rightly argued by the learned counsel for the respondent, the application for amendment is liable to be rejected."

5. As is well known, the Code of Civil Procedure, 1908, which was extensively amended in 1976, has been further amended by Code of Civil Procedure (Amendment) Act, 1999 and Code of Civil Procedure (Amendment) Act, 2002. The aforesaid two amending Acts have come into force with effect from 01.07.2002. Under Section 16(iii) of the Code of Civil Procedure (Amendment) Act, 1999 in the First Schedule, it was provided that Rules 17 and 18 in Order VI shall be omitted. In other words, the Amendment Act, 1999 abrogated the provision for the amendment of pleadings under Order VI Rule 17 altogether. However, as per the Amendment Act, 2002, Order VI Rule 17, as it stood before Amending Act, 1999 has been retained with the addition of the proviso which has already been extracted. This has been done under Section 7 of the Code of Civil Procedure (Amendment) Act, 2002.

6. Section 16 of the Code of Civil Procedure (Amendment) Act, 2002, contains provisions relating to Repeal and Savings. Provision under Section 16, so far as relevant for the present purpose, is as follows:

"16.Repeal and savings.--(1).......

(2).......

(a).....

(b)the provisions of Rules 5,15,17 and 18 of Order VI of the First Schedule as omit