THE HON’BLE SRI JUSTICE V.ESWARAIAH CIVIL REVISION PETITION No.5506 of 2009 ORDER: The petitioner herein is the plaintiff. He filed the suit in O.S.No.412 of 2003 on the file of the Additional Senior Civil Judge, Tirupati, seeking to declare that he is the absolute owner of the plaint schedule property and to deliver vacant possession of the same in his favour. The respondent herein filed written statement in the year 2004 itself. Thereafter, the issues were framed and the trial was also commenced. At the time of cross-examination of the witnesses on behalf of the plaintiff, a mistake with regard to schedule property was pointed out, as pointed out in the written statement. At that juncture, the plaintiff filed I.A.No.738 of 2008 under Order VI Rule 17 CPC seeking to amend the plaint schedule and the said application was dismissed by order, dated 21-10-2008. As the said order has not been questioned, the same has become final. Learned counsel appearing for the petitioner submits that the said mistake of the schedule property was rectified by executing a registered rectification deed, dated 28-02-2009 and therefore, the petitioner filed I.A.No.507 of 2009 seeking similar relief to permit him to amend the plaint schedule as per the rectification deed, dated 28-02-2009. The trial court vide its order, dated 17-08-2009, dismissed the said application. Aggrieved thereby, the present Civil Revision Petition has been filed. Learned counsel appearing for the petitioner submits that the amendment sought to be made is only with regard to surnames of the plot owners of eastern and western boundaries, as the earlier sale deed, dated 29-03-1995, was rectified by executing a registered rectification deed, dated 28-02-2009 and the said mistake is a genuine one, as the link documents, dated 30-11-1991, clearly indicate the correctness and accordingly, submitted that the trial court erred in dismissing the said application filed for amendment of the pleadings. In support of her contention, she has also relied upon the judgments of the Hon’ble Supreme Court in SAJJAN KUMAR Vs. RAM KISHAN[1] and USHA DEVI Vs. RIJWAN AHAMD AND OTHERS[2]. In SAJJAN KUMAR’s case (1 supra), the plaintiff therein had filed an application for amendment of the plaint, when the suit proceedings were at the final stage and the trial court rejected the amendment of plaint and the same was also confirmed by this Court, but the Supreme Court had allowed the said amendment on the ground that the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of execution, in the event of the plaintiff succeeding in the suit. The order of the trial court, rejecting the plaintiff’s application for amendment of the pleadings under Order VI Rule 17 CPC, was dated 29-04-2002. I am of the opinion that the suit was filed prior to the amendment of CPC, which came into effect from 01-07-2002 and, therefore, the amended provisions of Order VI Rule 17 CPC is not the subject matter of consideration by the Hon’ble Supreme Court and as the suit was filed prior to the amendment, the Hon’ble Supreme Court allowed the said amendment. In USHA DEVI’s case (supra 2), the suit was filed in the year 2002 but it is not clear as to whether the suit was filed before the amendment or after amendment, but para 9 of the said judgment goes to show that the amendment was made at the pre-trial stage and the trial was not commenced except filing of the affidavit of the chief-examination. Therefore, their Lordships clarified in the said order that they do not venture to make any pronouncement on the larger issue as to the stage that would mark the commencement of the trial of the suit, but observed that the facts on hand is closure on facts to the decision in SAJJAN KUMAR’s case (1 supra) and following SAJJAN KUMAR’s case (1 supra), the amendment was allowed. Admittedly, SAJJAN KUMAR’s case (1 supra) was prior to the amendment of CPC, but whereas in the instant case, it is not in dispute that PW.1 was examined on 21-09-2007 and thereafter, PWs.2, 3, 4 and 5 were also examined much prior to filing of the said application seeking amendment of the pleadings. The earlier application filed by the petitioner in I.A.No.738 was dismissed on the ground that when the mistake in respect of the plaint schedule was brought to the notice in the month of November, 2007 itself, the plaintiff was not able to explain or furnish any reasonable grounds for claiming the amendment of the plaint schedule. It is stated that the said mistake was pointed out in the written statement itself. Even after pointing out the mistake in the written statement, the petitioner has not chosen to get the rectification deed immediately, but only after examining five witnesses, the rectification deed was got registered on 28-02-2009 and thereafter, he had filed I.A.No.507 of 2009. Under amended Order VI Rule 17 of CPC, no application for amendment shall be allowed, after the trial has been commenced, unless the Court comes to a conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. In the instant case, the trial was commenced in the year 2007 and PWs.1 to 5 were examined and in spite of pointing out the defects in the written statement as to the boundaries mentioned in the plaint schedule properties, no steps have been taken by the petitioner either for rectification of the earlier sale deed or filing an application for amendment of the pleadings with due diligence. Only after five witnesses were cross-examined, and after making the rectification deed, the said application has been filed. Therefore, I am of the opinion that the petitioner was not diligent in filing the said application for amendment of the pleadings, after long lapse of commencement of the trial. In view of the aforesaid facts and circumstances of the case, it cannot be said that the petitioner was diligent in filing the said application for amendment of the plaint schedule. Therefore, I am of the opinion that the trial court has rightly dismissed the said application and I do not find any infirmity legal or otherwise in the impugned order, so as to call for interference by this Court under Article 227 of the Constitution of India. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. However, it is open to the petitioner-plaintiff to seek appropriate remedies, if he is so advised, for filing fresh suit by withdrawing the pending suit. ___________ 26-03-2010 Prv [1] (2005) 13 Supreme Court Cases 89 [2] (2008) 3 Supreme Court Cases 717