IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD THURSDAY, THE TWENTY NINTH (29th) DAY OF SEPTEMBER, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.2167 of 2011 Between: Ramdev Mantri … Petitioner And: Balmukund Rathi & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.2167 of 2011 ORDER: This revision is directed against the order dated 03.05.2011 in IA No.627 of 2010 in OS No.263 of 2009 on the file of the IV Additional Rent Controller, Hyderabad, wherein the said application filed by the petitioner herein under Order 6 Rule 17 CPC seeking amendment of the petition, was dismissed. 2. Heard both sides. Perused the record. 3. The petitioner herein filed rent control case against the respondent seeking eviction on the ground that the respondent/ tenant committed willful default in payment of rents and also that the petitioner bona-fide requires the schedule premises to expand his own business of tent house and supplying company, which he is carrying on in adjacent go-down. The respondent filed counter, contesting the petition. The enquiry commenced and the petitioner was examined as PW.1 and was cross-examined. At that stage, IA No.627 of 2010 seeking amendment of the petition under Order 6 Rule 17 CPC by raising additional plea that the schedule premises is required for the personal occupation of his son, who intends to establish his own tent house business, he having completed graduation and remained un-employee. The petitioner also sought to raise additional plea that the denial of jural relationship of landlord and tenant by the respondent was mala-fied. The respondent filed counter, opposing the application, denying the alleged requirement of the premises by the petitioner’s son and also contending that the proposed amendment after commencement of enquiry and completion of evidence of PW.1 is not permissible by virtue of proviso to Order 6 Rule 17 CPC. The learned Rent Controller by impugned order, dismissed the application observing that the proposed amendment is inconsistent with the original plea in the petition and the petitioner has not stated any cogent reason that inspite of due diligence he could not raise the additional plea earlier. 4. It is not disputed that the petitioner filed petition for eviction alleging willful default in payment of rents on the part of the respondent and bona fide requirement for personal occupation of the petitioner’s own business. In the proposed amendment, the petitioner seeks to raise additional ground that the premises is required for the business of his son. As rightly observed by the learned Rent Controller, the additional ground sought to be raised by way of amendment is inconsistent with the original ground urged in the eviction petition. That apart, admittedly, the petitioner’s son has completed graduation even by the date of filing of the eviction petition. If really, the petition schedule premises was required by the petitioner’s son for starting his own business, nothing prevented the petitioner from raising the said plea in the original petition itself. There was ample opportunity and occasion for the petitioner to raise the said plea in the original petition itself, but he has not availed the same. It is not the case where on account of subsequent events, the proposed amendment became necessary. The circumstances surrounding the proposed additional plea were very much in existence even by the date of filing of the petition, but still the petitioner has not pleaded the same in the original petition. It cannot therefore be said that inspite of exercise of due diligence, the petitioner could not raise the additional plea now proposed at any earlier point of time. 5. Regarding the second proposed amendment also, the petitioner was aware of the denial of jural relationship by the respondent the moment counter was filed, but the petitioner has not taken any steps to raise additional plea regarding the same before commencement of enquiry. The affidavit filed in support of the application does not contain any averment explaining the reasons or circumstances which prevented him from filing the application prior to commencement of enquiry inspite of due diligence. Even as per the said affidavit, the petitioner was aware of the denial of the petitioner’s title by the respondent and also existence of jural relationship from the counter filed by the respondent. When that is so, the petitioner ought to have filed application for amendment in exercise of due diligence prior to commencement of the enquiry. The proviso to Order 6 Rule 17 CPC as amended by Amendment Act 22 of 2002, mandates that no application for amendment shall be allowed after trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before commencement of the trial. The proviso is couched in such a language making the intention of the Parliament explicit that no application for amendment shall be allowed at all after the trial has commenced, the only exception being that the Court before allowing the said application shall come to the conclusion that inspite of due diligence the party could not have raised the matter earlier. Before exercising the power to permit the amendment of the pleadings under Order 6 Rule 17 CPC, the Court has to necessarily come to the conclusion that in spite of due diligence the party could not have raised the matter earlier, unless and until the Court reaches such conclusion, the power to permit the amendment of the pleadings cannot be exercised by the court in view of the bar contained in the proviso that no application for amendment shall be allowed after trial has commenced. It is therefore a question of exercise of jurisdiction by the Court in the matter of permitting the amendment and such exercise of jurisdiction is circumscribed by the condition contained in the proviso. Unless and until the condition contained in the proviso is complied with i.e., unless the Court reaches the conclusion that inspite of due diligence, the party could not raise the matter earlier, necessary jurisdiction to exercise power under Order 6 Rule 17 CPC is not available to the Court. In order to enable the Court to reach such conclusion, the party who seeks to amend the pleadings has to necessarily plead in the affidavit the facts and circumstances under which he could not raise the matter before commencement of the trial inspite of due diligence and also substantiate the said plea at the time of enquiry. In the absence of any such pleading in the affidavit filed in support of the application and in the absence of any material to show that inspite of due diligence, the party could not raise the matter earlier, the Court would be justified in rejecting the application for amendment in view of the bar contained in the proviso. 6. In ‘Vidyabai v. Padmalatha[1]’, the apex Court held as follows: “…By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under: "Provided that no application for amendment shall be 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." It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.” 7. The above decision makes reference to the decision in ‘N.Pandey v. Swami Keshavprakeshdasji[2]’ and it was further held as follows: “…However, proviso appended to Order VI Rule 17 of the Code restricts the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court’s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.” 8. In the above case it was reiterated that the trial is deemed to be commenced when the case stood adjourned for recording of evidence. In view of the principles laid down by the apex Court in the above decision to the effect that the Court’s jurisdiction to allow such an application is taken away unless the conditions precedent there- for are satisfied, and in the present case, there being no explanation at all as to why the petitioner could not raise the proposed additional grounds prior to commencement of the enquiry, though they were available even at that time and thus, the condition for exercise of jurisdiction has not been fulfilled, the learned Rent Controller was justified in refusing permission to amend the petition. 9. Learned counsel for the respondent relies on another decision in ‘Yellapu Damayanthi v. Polamarasetti Hemalatha[3]’ wherein also this Court confirmed the order of dismissal of the application for amendment in the light of the proviso to Order 6 Rule 17 CPC holding that such amendment of written statement was not permissible after commencement of the trial when said plea was within the knowledge of the defendants even prior to commencement of the trial. 10. In the circumstances, it is held that the impugned order dismissing the application filed by the petitioner seeking amendment of the petition, does not therefore call for any interference. 11. In the result, the civil revision petition is dismissed. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 29.09.2011 bss [1] AIR 2009 SC 1433 [2] (2006)12 SCC 1 [3] 2011(4) ALD 627