The central legal point established in the judgment is the requirement to establish 'due diligence' for amendments sought after the commencement of the trial, as per the provisions of the Civil Procedure Code and relevant case law.

This petition filed under Article 227 of the Constitution challenges the order dated 13-9-2013 (Annexure P-1) arising out of Civil Suit No. 136-A/2012 passed by Fourth Civil Judge, Class-I, Guna, whereby the Court below has rejected the application of the petitioners/defendants under Order 6, Rule 17, Civil Procedure Code.

2. In a suit for declaration and restoration of possession, the defendants filed their written statements. Thereafter, the Court below framed the issues and fixed the matter for plaintiffs' evidence. Admittedly, the affidavit of examination-in-chief under Order 18, Rule 4, Civil Procedure Code were filed by plaintiffs. At this stage, application Annexure P-4 dated 5-4-2013 was filed by issues were framed on 28-9-2012 and the affidavits of four persons were filed on 20-12-2012. The Court below opined that since the trial has already commenced and the petitioner has not shown any reason for belatedly filing the amendment application, it cannot be allowed. In other words, the Court below opined that petitioner has not established 'due diligence' in filing the application after commencement of the trial.

3. Criticizing this order, Shri R. K. Upadhyay submits that the finding of the Court below that trial has begun is bad in law and runs contrary to the judgment of Supreme Court reported in 2006(4) MPLJ (S.C.) 1 = (2006) 5 SCC 943, Baldev Singh and others vs. Manohar Singh and anr. He submits that in para 17 of this judgment, the Apex Court opined that commencement of the trial as per Order 6, Rule 17, Civil Procedure Code cannot be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. It is contended that the trial has not begun. Reliance is also placed on the judgment of Supreme Court reported in (2012) 11 SCC 341, Abdul Rehman and anr. vs. Ruldu and others. Lastly, reliance is placed on the judgment of this Court reported in 2012(1) MPLJ 710, Pushpa Arora vs. Anita Arora. Written statements are also filed to bolster these contentions.

4. Per contra, Shri Sanjay Sharma, learned counsel for the respondents supported the order and submitted that there is no procedural error in the order passed by the Court below.

5. I have heard the learned counsel for the parties and perused the record.

6. The main ground of attack on the impugned order is that in view of judgment of Baldev Singh (supra), the trial has not begun. In the considered opinion of this Court, the amendment prayed for before commencement of the trial and after commencement of the trial needs to be decided on different principles. This is because of insertion of proviso to Order 6, Rule 17, Civil Procedure Code w.e.f. 2002. No doubt, in Baldev Singh (supra), the Apex Court opined about commencement of the trial, the said judgment was considered in a subsequent judgment reported in 2009(3) MPLJ (S.C.) 122 = (2009) 2 SCC 409, Vidyabai and others vs. Padmalatha and another. In Vidyabai, the Apex Court considered its earlier judgment in Kailash vs. Nanhku, (2005) 4 SCC 480. In Kailash (supra), the Apex Court gave a finding that, "in a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial".

7. After considering this judgment, the Apex Court opined that filing of an affidavit in lieu of examination-in-chief of the witness, in our opinion, would amount to "commencement of proceeding" [para 11]. In para 16 of this judgment, the Apex Court considered the view of Apex Court in Baldev Singh (s) and opined that it is not authority for the proposition that the trial would not be deemed to have commenced on the next date of first hearing. It is further opined that in the said case, documents were yet to be filed and in those circumstances, the Apex Court opined in that manner.

8. In (2011) 12 SCC 26