1. Petitioner has filed this writ petition under Article 227 of the Constitution of India being aggrieved by order dated 22.11.2016 passed by the Court of Fourth Civil Judge ClassII, Shivpuri, whereby the application under Order 6 rule 17 of the Code of Civil Procedure (for short “CPC”) has been partly allowed and partly disallowed.

2. It is petitioner's contention that he had originally filed a suit for declaration, partition and permanent injunction and had moved an application after receiving the written statement for converting the suit into a suit for partition and all the pleadings in regard to partition have been negated by the trial Court. Therefore, the impugned order suffers from infirmity to the extent that the pleadings in regard to partition have been denied by the trial Court.

3. Learned counsel for the petitioner has placed reliance on a copy of the judgment of the Hon'ble Supreme Court in the case of Abdul Rehman v. Mohd. Ruldu, as reported in 2012 (III) MPWN 104, wherein the Hon'ble Supreme Court has held that the power to allow amendment is wide and can be exercised at any stage of proceedings in the interest of justice. In para 8, the Hon'ble Supreme Court has held that the original provision was deleted by the Amendment Act 46 of 1999, however, it has been again 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 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. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. However, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that Courts should try the merits of the case that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.

4. Similarly, reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Chakreshwari Construction Pvt. Ltd. v. Manohar Lal as reported in (2017)5 SCC 212, wherein the ratio is that if delay in filing the applications for amendment is explained by the appellant, the ratio laid down in the case of Revajeetu Builders and developers v. Narayanaswamy and Sons and others [(2009)10 SCC 84], in para 63 of the judgment is to be considered, and if the delay is explained properly, then one cannot dispute that in appropriate cases, the parties are permitted to amend their pleadings at any stage not only during the pendency of the trial but also at the first and second appellate stage with the leave of the Court provided the amendment proposed is bona fide, relevant and necessary for deciding the rights of the parties involved in the lis.

5. He has also placed reliance on the judgment of this High Court in the case of Ganesh Prasad Ojha v. Shri Hariram Ji Ojha and others, as reported in 2016(II) MPWN 124=2016(3) MPLJ 435, wherein relying on the judgment in the case of Ramesh Kumar Agrawal v. Rajmala Exports (Pvt) Ltd. [(2012)5 SCC 377], it has been held that liberal approach should be the general rules, particularly in case the other side can be compensated with costs.

6. On the other hand, the learned counsel for respondent No.1 submits that in the case of Chakreshwari Construction Pvt. Ltd. (supra), proviso below Order 6 rule 17 has not been considered. He has placed reliance on the judgment of this Court in the case of Pratap and Others v. Ganeshram and others, as reported in 2014 (3) MPHT 212, wherein it has been held that in absence of showing “due diligence” amendment cannot be allowed. Similarly, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Vidyabai and othe