1. The petitioner/plaintiff has preferred this writ petition challenging the order dated 28.2.2015 (Annexure P-1) passed by Vth Civil Judge, Class-I, Gwalior in Civil Suit No.17-B/2014, whereby the application under Order VI rule 17 CPC preferred by the petitioner/plaintiff has been dismissed.

2. The main contention of the petitioner is that the petitioner/plaintiff has filed suit for recovery of certain amount from the respondent/defendant and after notices, written-statement was filed by the respondent/defendant, wherein, the defendant has pleaded regarding the payment of outstanding to the plaintiff and doubted the amount to be paid. In response to the said written-statement, plaintiff has moved an application under Order VI rule 17 CPC for amendment of the plaint to the extent that plaintiff sought addition of certain pleadings in response to written-statement filed by the defendant/respondent.

3. The amendment was sought in the plaint at pre-trial stage.

4. On the other other hand, respondent/defendant contested the claim of the petitioner/plaintiff and supported the order under challenge.

5. Heard counsel for the parties and with their assistance perused the record.

6. From the plaint averments, it is clear that suit was filed for recovery of certain amount from the respondent/defendant, for which the respondent/defendant is contesting. Defendant contested the case and rebutted the pleadings of recovery.

7. In view of the averments made in the written-statement, it was imperative for the petitioner/plaintiff to amend the pleadings.

8. The trial Court framed issues on 5.8.2014, immediately thereafter, petitioner/plaintiff has moved an application for amendment on 10.9.2014. The respondent/defendant submitted consequential amendment by way of reply to the amendment application on 9.1.2015. Therefore, the application for amendment preferred by the petitioner/plaintiff was at the earliest available opportunity and defendant has even filed the reply, which is consequential in nature. Therefore, no prejudice/harm would have been caused to the defendant, if this amendment application would have been allowed.

9. It is well settled in law that an amendment, which is necessary for determination of real question in controversy should be allowed. If the other side can be compensated by cost and when no injustice is caused to the either side in such a case, the amendment should be allowed. See: Revajeetu Builder and Developers v. Narayanswamy and sons and others [(2009)10 SCC 84], it has been held that the expression due diligence means such diligence as a prudent person would exercise in conduct of own affairs. In the matter of Surendra Kumar Sharma v. Makhan Singh [(2009)10 SCC 626], it has been held that an application for amendment could not be rejected merely on the ground of delay.

10. In the present case, affidavits under Order XVIII rule 4 CPC are yet to be filed. There is no dispute about the said factual aspect of case status. The question is whether petitioner can be deprived from amending the suit on the ground of delay or because of operation of proviso to Order VI rule 17 CPC. The apex Court in the case of Vidhyabai and other v. Padmalatha and another [(2009)(3) MPLJ (SC) 122 = (2009)2 SCC 409], opined that the date on which the issues are framed is the date of first hearing. Code of Civil Procedure envisage taking of various steps at different stage of proceedings. Filing of an affidavit in lieu of examination in chief of witness, would amount to “commencement of proceedings.” This view of the apex Court is followed by this Court in case of Pratap and others v. Ganeshram and others [2014(2) MPLJ 464], as well as in the case of Sakuntala Bai v. Rajendra Kumar and others [2015(1) MPLJ 191]. Since, admittedly, on the date of filing of the application for amendment, affidavit under Order XVIII rule 4 CPC was not filed in my opinion, trial had not commenced and no adversity/harm would have been caused to the other side in allo