Amendment of pleadings is prohibited after the commencement of trial unless due diligence is proven, and the court has the discretion to reject an application if it causes injury to the opponents.

DECISION :

Gurpal Singh Ahluwalia, J.

1. This petition under Article 227 of the Constitution India has been filed against the order dated 14.8.2018 passed by Civil Judge class I, Vijaypur, District Sheopur in Case No. 25-A/17 by which the application filed by the petitioners under Order 6 Rule 17 CPC has been rejected.

2. The necessary facts for disposal of the present petition in short are that the petitioners have filed a suit for Declaration of Title and Permanent Injunction. The suit was instituted on 27.2.2010. Thereafter, issues were framed on 16.4.2011 and the case was fixed for 23.6.2011 for examination of plaintiffs/petitioners witnesses. From the impugned order, it is clear that on 7.7.2011, 3.8.2011, 19.8.2011, 10.8.2011 and 10.11.2011, the case was fixed for plaintiffs' evidence, however the witnesses were not examined and accordingly the case was fixed for 7.12.2011, but on the said date neither the plaintiffs nor their witnesses were present, accordingly the suit was dismissed in default. Thereafter, MJC. No. 1/12 was filed for restoration of civil suit which was allowed by order dated 16.11.2017 and the suit was restored to its original file. Thereafter, once again the case was fixed for recording of plaintiffs' evidence on 24.4.2018, 7.5.2018, 14.5.2018, 18.6.2018 and 4.7.2018. Thereafter, on 9.7.2018 an application under Order 6 Rule 17 CPC was filed for amendment in the plaint on the ground that the petitioners have been dispossessed by respondents Nos. 1 and 2 on 31.12.2011 from the disputed land except Survey No. 917, and accordingly it was prayed that the decree of possession be passed in favour of the petitioners in respect of the disputed land except Survey No. 917 area 0.073 hectares.

3. The respondents Nos. 1 and 2 filed their reply and objected to the application for amendment and prayed that there is no document in support of their contention that they were dispossessed on 31.12.2011.

4. By the impugned order, the trial court has rejected the application filed by the petitioners on the ground of delay.

5. Challenging the impugned order passed by the Court below, it is submitted by the Counsel for the petitioners that no prejudice has been caused to respondents nos. 1 and 2 due to delayed filing of the application under Order 6 Rule 17 CPC. It is further submitted that commencement of trial under Order 6 Rule 17 CPC must be understood in the wider sense. It is submitted that in the present case not a single witness of the plaintiffs/petitioners has been examined, therefore it is clear that trial has not commenced and, therefore, the trial Court was unjustified in rejecting the application filed under Order 6 Rule 17 CPC. It is further submitted that party can not be levied a just relief because of some mistake, negligence, inadvertence on the part of himself or his counsel.

6. Per contra, it is submitted by the counsel for respondents Nos. 1 and 2 that the solitary attempt of the plaintiffs was to avoid recording of evidence which is clear from the previous conduct also. On earlier occasion, the suit was dismissed for want of prosecution as the plaintiffs had not examined their witnesses in spite of the fact that multiple opportunities were given to them. Even after restoration of the suit the conduct of the plaintiffs did not improve and again took more than nine months to move an application for amendment in spite of the fact that on multiple occasions the case was listed for recording of evidence.

7. Heard the learned counsel for the parties. Order 6 Rule 17 CPC reads as under:

"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:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the c