The main legal point established in the judgment is the limitation and conditions for allowing amendments under Order 6, Rule 17 CPC, and the significance of 'due diligence' in seeking amendments.

Suneet Kumar, J.

The petition is directed against the order arising out of rejection of the application under Order 6, Rule 17 CPC.

2. The plaintiff-respondent instituted a suit for permanent injunction and for cancellation of ex parte decree passed in Original Suit No.185 of 2006. The applicant-defendant contested the suit by filing written statement and counter claim. The relief sought in the counter claim was for mandatory injunction against the plaintiff-respondent directing them to vacate a portion of property described along with the counter claim and to deliver possession. During trial as many as 11 issues were framed by the trial court and upon issue nos. 2,3, 11 and 12 being decided, at the stage of judgment, applicant moved an application (30-Ga) under Order 6, Rule 17to amend the counter claim. The amendment sought was to amend relief 'A' to the counter claim by substituting "mandatory injunction" by "possession".

3. The courts below rejected the application in view of proviso to Order 6, Rule 17 holding that the amendment was sought at the stage of decision of the suit, the impugned order would further note that the applicant-defendant has already sought a relief for possession by way of mandatory injunction, therefore, the amendment is not required at this stage. Further, no reason was assigned as to why the amendment is being sought at the belated stage after trial has concluded.

4. The submission of the learned counsel for the applicant is that the amendment could be sought at any stage of the proceedings, only relief clause is being sought to be amended that would neither change the nature of the suit nor would prejudice the other side, therefore, it is sought to be urged that proviso would have no bearing in allowing the amendment.

5. In Vidyabai and other v. Padamlatha and another, 2009(2) SCC 409, the question before the Supreme Court was whether the pleadings can be directed to be amended after the hearing of a case begins is the question involved in this appeal". The court was of the view that in proviso inserted to Order 6, Rule 17 of the Code was couched in a mandatory form, the court's jurisdiction to allow such an application is taken away unless condition precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. The court relied upon Union of India v. Major Genral Madan Lal Yadav, 1996(4) SCC 127, the three Judge Bench held that "trial" means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial.

6. The ratio in Kailash v. Nankhu, 2005 (4) SCC 480, was reiterated stating that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence.

7. By Act 46 of 1999, there was a sweeping amendment by which Rules 17 and 18 were wholly omitted so that an amendment itself was not permissible, although sometimes effort was made to rely on Section 148 for extension of time for any purpose. Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 17 by Act 22 of 2002 w.e.f 1 July 2002. It had a provision permitting amendment in the first part which said that the court may at any stage permit amendment as described therein. But it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. The Supreme Court in Salem Advocate Bar Association v. Union of India, 2005 (6) SCC 344 upheld the constitutional validity o