An application for amendment of pleadings after the commencement of trial can only be allowed if the applicant proves that, despite exercising due diligence, the request could not have been made earlier; ignorance of court proceedings does not satisfy the 'due diligence' requirement under the proviso to Order VI Rule 17 CPC.

JUDGMENT :

RAVI NATH TILHARI, J.

Heard Sri A. V. Pardha Saradhi, learned counsel for the petitioner and Sri Venkata Saketh Roy Vydyula, learned counsel for the respondents.

2. This civil revision petition under Article 227 of the Constitution of India has been filed by the petitioner/plaintiff in the suit. The challenge is to the Order dated 28.07.2025 passed by the VI Additional Civil Judge (Senior Division), Visakhapatnam in I. A. No. 317 of 2025 in O. S. No. 1094 of 2014. I.A. No. 317 of 2025 was filed by the plaintiff/petitioner for amendment under Order VI Rule 17 of the Code of Civil Procedure 1908 (in short 'CPC') and the same was rejected.

I. Facts:

3. The plaintiff instituted the suit against the defendants/respondents 1 to 8 seeking mandatory injunction for removal of wall constructed by the defendants and also for permanent injunction restraining the defendants from making any further construction after removal of the wall.

4. The prayer in the plaint reads as under:

“VI. Therefore, the plaintiff humbly prays that the Honourable Court may be pleased to pass a decree and judgment in his favour and against the defendant for:

a) To grant mandatory injunction directing the defendants to remove the wall constructed by them illegally which is shown in red in the rough sketch;

b) To grant consequential permanent injunction restraining defendants from making any further construction after removal of the illegally constructed wall shown in red in the sketch, directing the defendants 1, 2 & 3 to leave a clear way of 12 feet for ever from the 30 feet main road on the wet leading to the plaintiff’s house;

c) For costs of the suit and d) To grant such other relief or reliefs as the Honourable Court may deem fit and proper under the circumstances of the case.”

5. At the stage of evidence and belatedly almost after about 11 years the application for amendment was filed. The plaintiff sought declaration that the construction made by the defendants in an extent of 11 square yards into 12 feet wide road as shown in the plaint plan were illegal and consequential mandatory injunction to remove those construction and in case defendants failed to comply, permit the plaintiff to remove the constructions and recover the expenses from the defendants. The plaintiff prayed to substitute by amendment, para-VI (a) of the plaint with the following paragraph:

“VI (a) To declare that the constructions made by the defendants in an extent of 11 sq.yds into 12 feet wide road as shown in the plaint plan are illegal and consequential mandatory injunction to remove the illegal construction made into 12 feet wide road the defendants failed to comply with the same, permit the plaintiff to remove the same and recover the expenses from the defendants.”

6. Defendants/respondents 1, 2, 5 to 8 filed counters. They submitted that the petitioner could not be permitted to seek amendment as the trial had commenced. The petition was filed at a belated stage as well at the time of evidence of DW 2 only to drag on the proceedings. There was lack of due diligence at a earliest point of time in applying for amendment.

II. Impugned Order:

7. The learned VI Additional Civil Judge (Senior Division), Visakhapatnam framed the following points for determination.

“Whether the petitioner is entitled for the relief of amendment of pleadings in the plaint, as prayed for?”

8. The learned trial Court held that the trial had commenced. As per Order VI Rule 17 CPC its proviso, there was a bar that no application for amendment was allowed after the trial commenced and unless the Court was satisfied that in spite of due diligence the plaintiff could not have filed the application for amendment before the commencement of trial. The suit was at the fag end. The plaintiff could not satisfy that in spite of due diligence he could not file the application for amendment before commencement of trial. The cause stated by the plaintiffs was that due to inadvertence the plaintiff failed to notice the issue fram