1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. CHAMBER SUMMONS NO.1172 OF 2009 IN SUIT NO.2589 OF 1988 Mohan Gandhi & Co. ..Plaintiff. Vs. New Bank of India ..Defendant. ... Mr. Santosh Shetty i/b Manoj Khatri for the Plaintiff. Ms Armin Wandrewala i/b Vyas & Bhalwal for the Defendant. .... CORAM : DR. D.Y. CHANDRACHUD, J. 10th August, 2009. P.C. : 1. The Chamber Summons has been taken out for an amendment of the Plaint. The relief that has been sought in the suit is a declaration that an agreement of sale is in fact an agreement executed only as and by way of security and for the cancellation of the agreement. Consequential relief of possession has been sought. The suit was instituted before this Court on 25th August, 1988. The Chamber Summons for amendment has been lodged on 27th July, 2009. 2 2. Counsel appearing appearing on behalf of the Defendant submitted that by virtue of the amended provisions of Order 6 Rule 17 of the Code of Civil Procedure 1908, the amendment cannot be allowed since the trial has already commenced. Reliance was placed on the judgment of the Supreme Court in Vidyabai v. Padmalatha1 in support of the submission that the proviso to Order 6 Rule 17 is mandatory and that once issues have been framed and affidavits have been filed in lieu of the examination in chief, as in the present case, the trial must be deemed to have commenced as a result of which the application for amendment would not be maintainable. 3. The provisions of the Civil Procedure Code (Amendment) Act 2002 came to be enforced with effect from 1st July, 2002. The proviso to Order 6 Rule 17 as amended reads as follows : “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.” 1 AIR 2009 SC 1433. 3 4. However, Section 16(2) of the Amending Act of 2002 stipulates that the provisions of Order 6 Rule 17 as amended shall not apply in respect of any pleadings filed before the commencement of the provision. In the present case admittedly the suit was instituted much prior to the enforcement of the Amending Act. The judgment of the Supreme Court in Vidyabai’s case (supra) involved a situation where a suit was instituted on 16th December, 2003. Clearly therefore the suit was after the amended provisions of Order 6 Rule 17 came into force. Once the trial had commenced upon the framing of issues and the filing of affidavits of evidence, an amendment of a pleading would not lie. The decision in Vidyabai’s case is therefore clearly distinguishable. The position has been set at rest by the judgment of the Supreme Court in State Bank of Hyderabad v. Town Municipal Council2 where the Supreme Court placed reliance on the provisions of Section 16(2) of the Amending Act of 2002. In that case, the Supreme Court held that the proviso to Order 6 Rule 17 would not apply to a suit which was filed in 1998. Consequently, the proviso to Order 6 Rule 17 would have no application to a pleading that was filed in the present case much prior to 2 (2007) 1 SCC 765. 4 the enforcement of the amendment. 5. In support of the Chamber Summons it has been stated that certain facts though pleaded have not been elaborately set out in the Plaint’; that the Plaintiff who resides in Coimbatore was in touch with the earlier advocate who was of the opinion that it was not necessary to make a detailed elaboration at that stage. The earlier advocate died in 2005 whereupon a fresh advocate was appointed who had advised the Plaintiff to plead certain facts for the effective adjudication of the suit. There is no reason why the amendment as sought should not be allowed, subject, however, to the question of limitation being expressly kept open. For this purpose, it would be necessary to clarify that the amendment shall not relate back to the date of the institution of the suit. Subject to the aforesaid clarification, the amendment should be granted and is accordingly granted in terms of prayer clause (a) of the Chamber Summons, subject to the payment of costs quantified at Rs.3,000/- which shall be a condition precedent. The costs shall be paid within a period of two weeks from today. Upon the payment of costs and subject to due 5 verification, the registry shall permit the amendment to be carried out within a period of two weeks thereafter. The Defendant would be at liberty to file an additional written statement to the Plaint as amended within two weeks of the service of the amended plaint. The suit shall be placed on Board on 7th September, 2009 for further directions. *****