Hon’ble Tarun Agarwala, J.—Heard Sri R.S. Singh, the learned Counsel for the petitioner and Sri R.S. Chauhan, the learned Counsel for respondent Nos.1 to 4. Sri R.S. Chauhan submitted that he does not propose to file any counter affidavit and that the writ petition may be disposed of at the admission stage itself.

2. The petitioner is a plaintiff and had filed a suit for the cancellation of the sale-deed dated 29-6-1998. This date “29-6-1998” has been specifically alleged in paragraph 8 of the plaint. However, in paragraph Nos. 15 and 16, the date of the sale deed was mentioned as “29-8-1998”. In the prayer clause, the same date “29-8-1998” had been mentioned. The said suit was dismissed by a judgment dated 7-9-2004 against which, the petitioner filed a regular appeal before the appellate Court. During the pendency of the appeal the petitioner realised that there was a clerical error in paragraph 15 as well as in the prayer clause of the plaint and therefore, moved an application for an amendment of the plaint, under Order VI Rule 17 of the C.P.C. The said application was rejected by the appellate Court by an order dated 6-3-2006 on the ground that the entire basis of the suit would change and that no amendment could be allowed in the appellate proceedings, in view of the proviso to Order VI, Rule 17 of the C.P.C. incorporated pursuant to the Amendment Act No. 22 of 2002 which came into effect from 24-5-2002. Aggrieved, the petitioner has filed the present writ petition.

3. I have perused the plaint and have found that the petitioner had made a specific averment in para 8 of the plaint with regard to the sale-deed dated 29-6-1998. However, the date of the sale-deed dated 29-6-1998 was mentioned as 29-8-1998 in paragraph Nos.15 and 16 of the plaint as well as in the prayer clause. I have also perused the judgment of the trial Court and finds that even though issue Nos. 1 and 2 were framed with regard to the cancellation of the sale-deed dated 29-8-1998, the discussion and the findings given by the trial Court on the said issues was with regard to the sale-deed dated 29-6-2008.

4. In view of the aforesaid, the real controversy before the Court below was with regard to the cancellation of the sale-deed dated 29-6-1998 and not with regard to the cancellation of the sale deed dated 29-8-1998. Further, I find, that the defendants have nowhere alleged that there were two sale-deeds in question. Consequently, in the opinion of the Court, there appears to be a typographical error in paragraph 5 and 16 of the plaint as well as in the prayer clause of the plaint. The Court below committed an error in holding that the entire basis of the suit would be changed if the amendment is carried out.

5. In the opinion of the Court, the amendment sought was only clerical in nature and that the real question for determining the issue and the controversy was with regard to the cancellation of the sale-deed dated 29-6-1998 and not the sale-deed dated 29-8-1998. Consequently, the amendment will not change the nature of the suit or the controversy involved in the suit.

6. The finding of the trial Court that no such amendment could be allowed in the appeal and that too after the commencement of the trial in view of the Amendment Act No. 22 of 2002 is also misconceived. As per the Amendment Act No. 22 of 2002, the provisions of Order 6 Rule 17, as amended, is quoted herein under :

“17. Amendment of Order VI.—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. In Rajesh Kumar Aggar