IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11235 of 2011 Mundrika Sao @ Mundrika Prasad & Ors Versus Dwarika Prasad & Ors ---------------------------------- O R D E R 09. 14.12.2011 1. I have heard the learned counsel Mr. Vijay Anand Singh on behalf of the petitioners. 2. This application has been filed by the petitioners against the order dated 20.2.2007 passed by Sub Judge-I, Aurangabad in Title Suit No. 164 of 2002. 3. The learned counsel for the petitioners submitted that after commencement of trial the learned court below could not have allowed the amendment application and moreover, the plaintiff earlier filed the suit for easementary right and by the amendment he wants to add a fresh party and it will change the nature of the case. 4. The learned counsel for the petitioners submitted that the plaintiff’s evidence has been closed and thereafter the defendant 3rd party has also adduced evidence and then this amendment application has been filed. According to the learned counsel in view of the decision of the Apex Court reported in AIR 2009 SC 1433 the learned court below could not have allowed the amendment application because the proviso added to Order 6 Rule 17 C.P.C. is mandatory. 2 5. From perusal of the impugned order it appears that the learned court below considered all the submissions that is made before this court and also considered the allegation made in the plaint and came to the conclusion that the amendments sought for are formal in nature and because of inadvertence of the plaintiff the fact could not be mentioned and the amendment sought for is necessary for just decision in the case. The learned court below also found that if the amendment is allowed the nature of the suit will not be changed. In such circumstances only because there is delay, in my opinion, the amendment could not have been refused. So far decision relied by the learned counsel for the petitioners is concerned the facts of that case are different. Here in the present case the learned court below has considered the effect of proviso of Order 6 Rule 17 C.P.C. In 2011 (4) BBCJ 107 Mahadev Govind Gharge vs. Special Land Acquisition Officer the Apex Court examined various provisions of C.P.C. and held that the code of civil procedure is a law relating to procedure and procedural law is always intended to facilitate the process of achieving the ends of justice. The courts would normally favour the interpretation which will achieve the said object. Therefore, the proviso added to Order 6 Rule 17 of Amendment Act No. 22 of 2002 although couched in the mandatory form but is not mandatory. 3 It is also not absolute bar for allowing amendment, the allowing of amendment depends on facts of each case. After insertion of this proviso the court can allow amendment if it is necessary for determination of the real controversy between the parties and satisfy that after due diligence this fact could not be brought earlier. In the present case, after considering the facts and circumstances of the case and the effect of the proviso the learned court below came to the conclusion that the amendment sought for are formal in nature and it is necessary for just decision and for doing justice. 6. In view of the above facts, in my opinion, the learned court below has exercised a jurisdiction rightly vested in it by law. Therefore, in supervisory jurisdiction the impugned order cannot be interfered with. Thus, this writ application is dismissed. S.S. (Mungeshwar Sahoo, J.)