The main legal point established in the judgment is the restriction and conditions imposed on amendments of pleadings under Order 6, Rule 17 CPC, particularly after the trial has commenced, as introduced by the 2002 Amendment Act.

Anil Kumar, J. –

Heard Ms. Prashansa Singh, learned counsel for petitioner, Sri Deepanshu Das, learned counsel for respondents and perused the record.

2. Facts in brief of the present case that the petitioner-plaintiff filed a suit for permanent injunction registered as Regular Suit No. 21 of 2002, in the court of Civil Judge (Jr. Div.), Lucknow, dismissed by order dated 15.01.2009, challenged by the petitioner-plaintiff by filing a Civil Appeal No. 28 of 2009 (Kuldeep Saxena v. Smt. Sukhrani and others) on 20.02.1990. During the pendency of the appeal, an application under Order 6, Rule 17 CPC has been moved before the appellate authority for making certain amendments in the plaint, the same has been opposed by the defendant.

3. By an order dated 28.10.2015, Additional District Judge, Room No. 2, Lucknow/respondent No. 1ppellate authority had rejected the same, the said order is under challenge in the present case.

4. I have heard learned counsel for the parties and gone through the record.

5. In order to decide the said controversy, it is necessary to state the following facts in brief. Order 6, Rule 17 CPC as exists before 1999 is quoted as under: -

"Order 6, Rule 17 :

"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." The aforesaid provision was omitted by the Civil Procedure Code (Amendment) Act, 1999 Section 16 of the Amendment Act reads as follows:

"16. Amendment of Order 6 - in the First Schedule, in Order 6-

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(iii) Rules 17 and 18 shall be omitted." The provision as it exists now after the Civil Procedure Code (Amendment) Act, 2002 Order 6, Rule 17

"17. Amendment of pleadings-The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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."

It is seen that before the amendment of Order 6, Rule 17 by Act 46 of 1999, the Court has taken a very wide view of the power to amend the pleadings including even the plaint as could be seen from L.J. Leach and Co. Ltd. v. Jardine Skinner and Co., AIR 1957 SC 357 : 1957 SCR 438 , SCR at 450 and Gurdial Singh v. Raj Kumar Aneja, (2002) 2 SCC 445 : AIR 2002 SC 1003 .

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 14 by Act 22 of 2002 w.e.f. 1-7-2002. 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. It is the proviso which falls for consideration."

6. It is to be noted that the provisions of Order 6, Rule 17 CPC have been substantially amended by the CPC ( Amendment ) Act 2002.

7. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial. It is submitted, that