THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NO.5184 OF 2008 DATED: 07-03-2011. Between D.Venkata Narayana Rao … Petitioner And 1.N.Satyanarayana Gupta and others …Respondents THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NO.5184 OF 2008 ORDER: This revision is directed aggrieved by the order, dated 23-10-2008, in I.A.No.213 of 2007 in O.S. No.10 of 2005, on the file of the Senior Civil Judge, Kadiri, whereunder and whereby the application filed under Order VI Rule 17 CPC to amend the plaint schedule, was allowed. 2. As seen from the record, it is clear that the above application was filed before conclusion of the evidence of plaintiffs for amendment of the pleading in respect of correction of survey number relating to item No.7 of the plaint schedule property. 3. Learned counsel for the petitioner contended that the respondent knew very well that survey No.794 was sub-divided into 794/A1 and 794/A2 as specific plea has been taken by the defendants in the written statement filed in the year 2005 itself, that unless due diligence is shown, question of attracting proviso to Order VI Rule 17 CPC does not arise and the trial Court having observed that there are laches on the part of the respondent, still allowed the application and hence, he prays to set aside the impugned order. 4. On the other hand, learned counsel appearing for the respondents contended that during the course of evidence, a specific suggestion was given to the petitioner that item No.7 of the plaint schedule was covered by Survey No.794/A1, which necessitated the respondent herein to file the application and it will not change the cause of action or structure of the suit or in any manner prejudice to the case of the petitioner, that the trial Court rightly allowed the application and absolutely, there are no grounds to interfere with the same. 5. The rule in Order VI Rule 17 of CPC consists of two parts. Whereas the first part is discretionary and leaves it to the Court to order amendment of pleading, the second part is imperative and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. The said provision confers very wide and unfettered discretionary powers on a court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. But proviso to Rule 17 as inserted by CPC (Amendment) Act, 2002 restricts and curtails power of the Court to allow amendment in pleadings by enacting that no application for amendment should 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 commencement of trial. 6. Learned counsel for the petitioner placed reliance on the decision reported in SILUVERULAKSHMAMMA AND SILUVERI SANKARAIAH AND OTHERS [1], wherein it was held thus: “On a careful analysis of the facts, here is a party, the petitioner-plaintiff, who approached the Court by moving an application praying for amendment at a very belated stage i.e., at the stage of arguments. Even if the averments made in the affidavit be carefully examined, no reasons worth mentioning had been explained to get over the rigour of the proviso specified supra.” That is a case where the amendment petition was sought to be filed at the stage of arguments, but that stage has not come in the case on hand. However, the principle laid down in the above decision is that if the case attracts proviso to Order VI Rule 17 CPC, then to do substantial justice to the parties, the amendment petition can be allowed. 7. Now it has to be seen whether the case on hand attracts proviso to Order VI Rule 17 CPC. The reason given by the petitioner is that the 1st respondent mortgaged Ac14.30 cents of land in Survey No.794, which was shown as item No.7 in the plaint schedule. But, due to some mistake and oversight at the time of execution of Ex.A1, survey number was shown as 794. But, as a matter of fact that survey number was sub-divided and therefore, the survey number has to be shown as 794/A1 and what was intended to mortgage the 1st respondent was only an extent of Ac.14.30 cents of land in survey No.794/A1 and that survey No.794 is not in existence. 8. In this case, as seen from the pleadings and evidence, it is clear that allowing the amendment petition would not change the cause of action or the structure of the suit. Even it does not change the extent of land claimed under item No.7 of the plaint schedule. Only thing is some inadvertent negligence can be attributable to the party. The reason given by the respondent herein is that he was under the impression that 1st respondent would not dispute the inclusion of Ac.14.30 cents of land in Survey No.794/A1. It was came to the knowledge when a suggestion was given at the time of cross-examination of P.W.1. No doubt, some laches are there, but at the same time, for deciding or adjudicating issue involved effectively in the suit, the trial Court allowed the application by taking note of the fact that it will not take away the vested right of the petitioner nor setting up new cause of action or a new claim entirely different from that of the original claim. The relief sought for in the plaint is for the land to an extent of Ac.14.30 cents. Some land is said to have acquired by the Government. As the amendment would not cause any prejudice to the defendant and it is only for proper and effective adjudication of the issue involved, the trial Court rightly allowed the application and the said order needs no interference by this Court. 9. Accordingly, the Civil Revision Petition is dismissed. No order as to costs. --------------------- K.C.BHANU, J DATED: 07-03-2011 Hsd [1] 2008 (5) ALD 322