IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18440 of 2011 Nag Narain Yadav & Ors Versus Tribhuwan Choubey & Ors ---------------------------------- 05. 12.12.2011. Heard the learned counsel for the petitioners. Some of the defendants have filed this writ application under Article 227 of the Constitution of India against the order dated 28.1.2010 passed by Sub Judge-5th, Gopalganj in Title Suit No. 147 of 200 whereby the learned court below allowed the amendment application filed by the defendant Nos. 7 and 8 praying for amendment of the written statement. The learned counsel for the petitioners submitted that the said respondents had filed the written statement jointly with the petitioners and in fact the learned court below has not considered the proviso added to Order 6 Rule 17 C.P.C. because the issues have already been framed and the plaintiff was directed to produce witnesses. The learned counsel relied upon a decision of this court reported in 2011 (4) PLJR 515 Sanjay Kumar vs. The State of Bihar and submitted that the learned court below could not have allowed the amendment of the written statement after commencement of trial. From perusal of the decision relied upon by the petitioners it appears that in that case the suit was filed in the year 2005. So far the present case is concerned, this suit has been filed in the year 2000. The proviso has been added to Order 6 Rule 17 by C.P.C. Amendment Act No. 22 of 2002. The Hon’ble Supreme Court in the case of State Bank of 2 Hyderabad vs. Town Municipal Council 2007 (1) SCC 765 and in the case of Shumesh Singh vs. Phoolan Devi and others (2009) 12 SCC 689 clearly held that the proviso will be attracted in those cases which have been instituted after 1.7.2002 and it will not apply so far the suits which have been instituted prior to 1.7.2002. Admittedly this present suit has been filed prior to the amendment whereby the proviso has been added. Therefore, the proviso to Order 6 Rule 17 will not be attracted in the present case. From perusal of the impugned order it appears that the learned court below has considered that the parties are yet to adduce evidence in this case. However, it is not clear from the order that the amendment allowed by the court below on the application of the defendant Nos. 7 and 8 will be applicable in respect of the stand of the present petitioner or not. Since the petitioners has objected to the amendment application filed by the defendant Nos. 7 and 8 and the learned counsel for the petitioner submitted that whatever stand might be taken by the defendant Nos. 7 and 8 will not bind the present petitioners is concerned, in my opinion, the stand of the petitioners appears to be different than the stand of the defendant Nos. 7 and 8 and, therefore, the amendment portion of the written statement will never bind the present petitioners and it will confine and be treated as stand of the defendant Nos. 7 and 8 only. With this clarification and observation, this writ application is disposed of. S.S. (Mungeshwar Sahoo,J.)