The amendment application cannot be allowed after the trial has commenced unless the party could not have raised the matter before the commencement of the trial, and the relief claimed in the amendment application must not be time-barred.

1. The petitioner is the 1st defendant in O.S.No.461 of 2004 on the file of the II Additional District Munsif Court, Bhavani. This is a Suit for partition filed by the respondents 1 to 3. The trial was taken up. The plaintiffs evidence was over and the 1st defendant was also examined before the court. At that time, the plaintiffs filed the petition in I.A.No.62 of 2009 under Order 6 Rule 17 of CPC for amending the plaint to include a relief of declaration that the Gift Settlement Deed dated 1.2.1997 executed by the deceased Chinnasamy is not binding upon the plaintiffs and also certain pleadings with regard to jurisdiction and court fee.

2. In the affidavit, the plaintiffs have alleged that the 1st respondent filed an additional Written Statement, in which he has pleaded that his father Chinnasamy had executed a Gift Settlement Deed dated 1.2.1996 in his favour, that the said Chinnasamy was not commanding good health and was bedridden at that time and the settlement deed was obtained from him by misrepresentation and unlawfully and hence the relief of declaration that the Deed is not binding upon the plaintiffs is to be incorporated in the plaint and so the amendment petition may be allowed. 3. In the counter filed by the 1st respondent/1st defendant, it is stated that after this respondent was examined before the court in part, the amendment petition came to be filed. This defendant has filed written statement and additional written statement on 4.12.2002 and 7.9.2004 respectively. In the additional written statement, a defence has been raised to the effect that the deceased Chinnasamy on 1.2.1996 executed a Gift Settlement Deed in favour of the 1st defendant in the presence of the plaintiffs. On 7.9.2004 itself, the plaintiffs were put on notice with regard to the above said Gift Settlement Deed, but only on 15.10.2009, after a lapse of five years, the petition has been filed. The Gift Settlement Deed came to existence on 1.2.1996, which was not executed on 1.2.1997 as mentioned by the plaintiffs. The other particulars with regard to market value of the property are also incorrect. There is no averment with regard to the proper payment of court fee. Even in the plaint, the plaintiffs have not stated that the Settlement Deed does not bind them. Hence, the petition may be dismissed with costs.

4. In the counter filed by the 7th defendant, adopted by the 3rd defendant and in the counter filed by the 14th defendant, identical allegations, as contained in the counter filed by the 1st defendant are available.

5. After hearing both parties, the learned II Additional District Munsiff has allowed the application by observing that to enable the plaintiffs to establish their case and to afford opportunity to them to bring the real factors before the Court the petition has to be allowed and even in a Second Appeal, an amendment application may be allowed. It is the order under challenge before this Court.

6. Prior to the Act 22 of 2002 in Civil Procedure Code, amendment to the pleadings were liberally allowed. But Act 22 of 2002 puts a restriction on the powers of the Court to entertain an amendment petition. When petition for amendment is filed after the trial is commenced in the Suit, the party who seeks to amend shall show before the Court that he could not make the amendment petition earlier to the commencement of the trial, inspite of his due diligence. The present provision in Order 6 Rule 17 of the CPC, is 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 conclusion that inspite of due diligence, the party could not have raised th