The relevance of the proviso to Rule 17 of Order 6 CPC in light of a Supreme Court decision and its impact on the consideration of an amendment application.

Abhinava Upadhya, J.

A suit for cancellation being Suit No. 1132 of 1999 is said to have been filed? by the plaintiff-respondent against the defendant-petitioner. The said suit came to be decreed against the petitioner by judgment and decree dated 16.10.2007. The defendant-petitioner then filed an appeal? being Appeal No. 64 of 2007. In the said appeal the petitioner filed? an amendment application on 28.10.2013 seeking amendment to? add certain facts in the written statement filed by the petitioner in the said suit. The said amendment application has been rejected on the ground? that the petitioner has not been able to indicate as to how the said amendment was not within the knowledge? of the petitioner at the time of filing of the plaint? and rejected the application.

2. Learned counsel for the petitioner submtis that the amendment can be made at any stage? and the appellate court has wrongly rejected the application relying upon the proviso to Rule 17 of Order 6 CPC. According to him the said proviso was inserted only? in 2002 and the suit was filed in 1999 and the written statement was also filed in the year 2000. As such, the said proviso will not be applicable? in the pleadings filed before the amendment in Rule 17 of Order 6 CPC.?

3. Learned counsel for the petitioner has relied upon a Supreme Court decision? rendered in the case of State Bank of Hyderabad Vs. Town Municipal Council reported in 2007 (1) AWC 627 (SC). Paragraph nos. 6 and 7 of the said judgment are quoted herein below:

"6. Proviso appended thereto was added by the Code of Civil Procedure (Amendment) Act, 2002 which came into force with effect from 1.7.2002. It reads as under:

"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. Section 16(2) of the Amending Act of 2002 reads as under:

"16(2) Notwithstanding that the provisions of this Act have come into force or repeal under sub- section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897-

(a) *** ***

(b) the provisions of rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;"

4. Considering the aforesaid judgment of the Supreme Court, in my view,? the appellate court has to consider the same? and pass a fresh order taking into account the relevancy? of the amendment sought and not to reject the application only? in view of proviso to Rule 7 of Order 6 CPC.

5. Since the matter is being remanded, in my view, no notice is required to be issued? to the respondents at this stage

6. The writ petition is allowed to the extent indicated above.