IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19414 of 2011 Arun Kumar Sinha Versus District Bhudan Yagya Committe ---------------------------------- 18. 08.12.2011. Heard the learned counsel for the petitioner. The plaintiff is the petitioner in this application filed under Article 227 of the Constitution of India. The order dated 27.8.2007 passed by Sub Judge- 4th, Gaya in Title Suit No. 26 of 2004 / 233 of 2000 is under challenged whereby the learned court below has rejected the amendment application filed by the plaintiff in the plaint. The learned counsel for the petitioner submitted that the learned court below has rejected the plaintiff’s application only on the ground of delay. The learned counsel further submitted that still the evidence of plaintiff is going on and the amendment sought for is formal in nature and neither the nature of the suit is changed nor any prejudice will be caused to the defendant. On the other hand, the learned counsel for the respondent relied upon a decision of the Apex Court reported in AIR 2009 SC 1433 Raj Viddya Bai vs. Padam Lata and submitted that the proviso added to Order 6 Rule 17 of the Code of Civil Procedure is mandatory and, therefore, after commencement of trial the learned court below could not have allowed the amendment application and, therefore, rightly rejected the amendment application. So far the decision cited by the learned counsel 2 for the respondents is concerned the same shall not apply in the present case. In this case, the suit has been instituted in the year 2000. By amendment Act No. 22 of 2002 proviso has been added from the date of 1.7.2002 by reason of Section 16 sub Section 2 clause (B) and it has been held by the Apex Court in 2009 (12) SCC 689 that the proviso will be applicable in case of the suits which were filed after 1.7.2002 and not in the suits which were filed prior to 1.7.2002. Admittedly, the present suit has been filed in the year 2000 and, therefore, the proviso will not be attracted. The division bench of this Court in 2007 (1) PLJR 327 Jageshwar Rai Vs. State of Bihar and others held that the jurisdiction to allow or not to allow amendments is discretionary in nature and hence it has to be exercised in a judicious evaluation of facts and circumstances in which the amendments are sought. If the granting of the amendments really subserves the ultimate cause of justice, it has to be allowed. It is almost inconceivable how mere amendments of pleadings could possibly cause failure of justice or irreparable injury to any party. Perhaps the converse is possible, i..e. refusal to permit the amendments sought for could in certain situations result in miscarriage of justice. After all amendments of the pleadings would not amount to decisions on the issue involved. They only would serve advance notice to the other side as to the plea which a party might take up. Hence we cannot envisage a situation 3 where amendment of pleadings, whatever be the nature of such amendment would even remotely cause failure of justice or irreparable injury to any party. In the present at our hand admittedly, the plaintiff’s evidence is still going on but the defendant has not yet started the evidence as stated by the petitioner. In 2010 (4) PLJR 355 Smt. Nalini Mishra Vs. Braj Kishore Mishra this Court examining various decisions of the Apex court held that the provisions of Order 6 Rule 17 should be given a liberal meaning and the amendment should ordinary be allowed. It has been held that the law of amendment is a procedural one and its aim being to advance the cause of administration of justice. The court should adopt a liberal approach and amendment should be allowed. Only in cases where right has accrued to the other side and it cannot be compensated then the amendment should be refused. It appears that in that case also the date of birth was in conflict and the amendment was sought for by filing application which was allowed considering the facts and circumstances of the case. In my opinion, the learned court below has not exercised a jurisdiction vested in it by law under Order 6 Rule 17 and, therefore, the impugned order is unsustainable in the eye of law. Thus, this writ application is allowed and the impugned order is set aside. The plaintiff’s application for amendment of plaint is allowed. The plaintiff shall 4 incorporate the amendment in the plaint within the stipulated period provided under the Code of Civil Procedure within two weeks from receipt of a copy of this order in the court below. S.S. (Mungeshwar Sahoo,J.)