The central legal point established in the judgment is the requirement of 'due diligence' before allowing an amendment after the commencement of trial, as per the amended provision of Order 6 Rule 17 of the CPC.

Prakash Shrivastava, J.:-

This writ petition under Article 227 of the Constitution of India is at the instance of the defendant in the suit challenging the order of the Trial Court, dated 24-1-2014 allowing the respondent's application for amendment of plaint under Order 6 Rule 17 of the CPC. In brief, the respondent has filed the suit for permanent injunction in which the petitioners had filed the written statement as well as the counter claim. The respondent had also filed the reply to the counterclaim. The petitioners thereafter had filed an application for amendment of the counter claim, which was rejected by the Trial Court, against which the petitioners had filed W.P. No. 4766/2012, which was allowed by this Court by order dated 5-7-2012 with certain conditions permitting the petitioners to file fresh application. The petitioners had filed the fresh application for amendment of written statement and counter claim, which was allowed by the Trial Court. At the stage of consequential amendment, the respondents had declared that they did not want to make any consequential amendment and the matter had proceeded before the Trial Court and after completion of the evidence, at the final stage the respondent had filed an application under Order 6 Rule 17 of the CPC, which has been allowed by the Trial Court by the impugned order dated 24-1-2014.

2. Learned Counsel appearing for the petitioners submits that the Trial Court while allowing the respondent's application for amendment, has not considered the effect of the proviso to Rule 17 of Order 6 of the CPC and had also not considered the earlier declaration by the respondents that they did not want to make any consequential amendment, and such a declaration acts as res judicata in respect of their application for consequential amendment. He has also submitted that the amendment will require fresh evidence by the parties.

3. As against this, learned Counsel for the respondent submits that the application for amendment was only for consequential amendment for amending the written statement filed by the petitioners in reply to the counter claim and for that amendment no further evidence is necessary.

4. I have heard the learned Counsel for the parties and perused the record.

5. After the amendment in the CPC and incorporation of the proviso in Rule 17 of Order 6, the discretion to amend the pleading at any stage of the proceedings has been restricted and the requirement of showing "due diligence" has been imposed before allowing amendment after the commencement of the trial. In view of the amended provision 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, no application for amendment can be allowed after the commencement of trial. The Supreme Court in the matter of Salem Advocate Bar Association, Tamil Nadu v. Union of India, reported in 2005 AIR SCW 3827, while upholding the validity of the amendment in the CPC, has held that the proviso to some extent curtails the absolute discretion to allow amendment at any stage, by observing as under:--

"27. Order VI Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002, but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications, which are filed to delay the trial. There is no illegality in the provision."

6. In the matter of Ajendraprasadji N. Pand