The proviso to Order 6 Rule 17 of the Code of Civil Procedure restricts amendments to pleadings after the commencement of the trial, aiming to prevent the introduction of fabricated evidence and the protraction of litigation.

JUDGMENT :

In this writ application, the plaintiff of C.S. No. 217 of 2003 as petitioner challenges the order dated 22.11.2006 passed by the learned Civil Judge (Senior Division), Baripada, rejecting the prayer for amendment of the plaint.

2. The amendment of the plaint in essence is sought to introduce the matter of reduction of the factum of adoption of plaintiff by husband of defendant nos. 1 and 2 and father of defendant nos. 3 and 4 on 1.03.1954. This amendment petition was filed on 14.11.2006 in the suit of the year 2003 and that too after examination of one witness from the side of the plaintiff.

3. The court below as it is seen has made strenuous exercise in going to examine at that stage the truthfulness of that factum of adoption sought to be further reinforced by seeking amendment as regards the said fact being reduced into writing. Ultimately, said document has been held to be doubtful one. For the purpose, the pleadings and the evidence so far tendered have been evaluated in great detail. The document if any has been held to be an in-genuine one, created for the purpose to provide support to the evidence of P.W.1 which otherwise and in the absence of said document may stand for being discarded thereby seriously affecting the plaintiff’s case.

4. Learned counsel for the petitioner submitted placing reliance in case of Baldev Singh and others vrs. Monohar Singh and another; 2006 (II) CLR (SC) 637 that the provision brought in by amendment of Code of Civil Procedure precluding the parties from bringing amendments in the pleadings after commencement of trial have to be understood in limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing argument. According to him, the trial court has not properly understood the ratio of the decision and has held that such amendment is not permissible in the midst of hearing. He further contended that the trial court ought not to have resorted to the exercise of going to examine the veracity of the said pleading with regard to the document at that stage and that according to him is not permissible in law which has rather touched the merit of the case which stands to be ultimately gone into for being decided. His contention is that even in case of rejection, such exercise ought not to have been undertaken. Thus, he submitted that when the amendment is not going to change the nature and character of the suit and it is also not causing any surprise to the defendants as factum of adoption was earlier pleaded, the trial court’s order rejecting the prayer for amendment is a flawed one and it would prevent the petitioner to necessary evidence for just a decision.

5. Learned counsel for the opposite parties refuting the submission of learned counsel for the petitioner as regards the stage of the suit being not impermissible for amendment further resisted the move for amendment centering round that document, just after examination of P.W.1 who for the first time spelt about it. According to him, grant of leave for such amendment on its face value and in view of the pleading and evidence on record is not permissible and it would encourage fraud and forgery which in fact has been sought to be prevented by said amended provision in the Code with a view to see that the party be not allowed to resort to plead falsehood and develop the pleading to suite the purpose from time to time looking at the development in course of hearing. According to him, by insertion of proviso casting upon the party to show that despite of due diligence, the said fact was not earlier known for being pleaded, such attempted mischief is intended to be nipped at the bud.

6. For proper appreciation of the matter and in order to properly address the submission as advanced, it is felt the need to have at first a close look at the provision of Order 6, Rule 17 of the Code as it stood prior to the amendment by Amendment Act, 2000 and now after.

The only significant and