IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD TUESDAY, THE TWENTIETH (20TH) DAY OF SEPTEMBER, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.1994 of 2011 Between: V. Vasudevarao … Petitioner And: R.K.Agarwal … Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.1994 of 2011 ORDER: This revision is directed against the order dated 07.04.2011 in IA No.1459 of 2010 in OS No.26 of 2006 on the file of the I Additional district Judge, Vizianagaram, wherein the said application filed by the respondent herein-plaintiff under Order VI Rule 17 CPC seeking amendment of the plaint, was allowed on payment of costs of Rs.300/-. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondent. Perused the record. 3. The respondent herein filed suit against the petitioner for recovery of amount said to be due under the suit promissory note. In the plaint, it is averred that the defendants are husband and wife and both the defendants borrowed a sum of Rs.7,20,000/- from the plaintiff. In para 3(b) it is again averred in spite of repeated demands the defendants did not choose to pay the suit amount. After settlement of the issues, trial commenced. PWs.1 and 2 were examined on behalf of the plaintiff and his evidence was closed and the matter posted for defendant’s evidence. In the evidence also PW.1 stated in the cross-examination that the defendant and his wife borrowed the suit amount and both of them executed the suit pronote. Subsequently, plaintiff filed IA No.1459 of 2010 seeking amendment of the plaint to the effect that the defendant alone borrowed the suit amount and the defendant alone executed the suit pronote by deleting the words in para 3 ‘both the defendants are husband and wife’. According to the plaintiff, the proposed amendment merely seeks to make a correction of typographical error. The petitioner/defendant filed counter opposing the proposed amendment on the ground that the application is highly belated and cannot be permitted in view of the proviso to Order VI Rule 17 CPC and the proposed amendment would cause serious prejudice to the defence as it seeks to efface certain admissions made by PW.1 in the cross-examination. The learned Additional District Judge, by impugned order allowed the application on the premise that it seeks to correct a typographical mistake that crept in para 3 of the plaint. The objection raised by the petitioner/defendant on the ground that after commencement of the trial, the amendment cannot be allowed in view of the proviso to Order VI Rule 17 CPC, is referred to in the impugned order, but the same was over ruled on the ground that the proposed amendment does not introduce any new cause nor change the original cause of action. 4. Learned counsel for the petitioner would vehemently contend that once the trial has commenced, no amendment of the pleadings shall be permitted in view of the amended provision of Order VI Rule 17 CPC, whatever the nature and purport of the proposed amendment. He would further contend that under the proviso to Order VI Rule 17 CPC, an amendment can be permitted only when the party seeking amendment is able to establish and the Court records a finding to the effect that inspite of due diligence the party could not raise the matter earlier and till then the Court does not have jurisdiction to allow the proposed amendment. 5. Learned counsel for the respondent-plaintiff seeks to justify the impugned order on the ground that the proposed amendment merely corrects a typographical error and does not change the nature of the suit nor alter the original cause of action. 6. In support of his contention, learned counsel for the petitioner strongly relies upon the decision in ‘Vidyabai v. Padmalatha[1]’ wherein 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. In the above decision it was further held that ‘the date on which issues are framed is the date of first hearing and filing of an affidavit in lieu of examination-in-chief of the witness, would amount to ‘commencement of proceedings’. In the present case, there is however no dispute regarding the fact that the trial has in fact commenced and PW.1 was also examined and it was only thereafter that the present application for amendment is filed. 8. In the above case, reference was made to the decision in ‘Kailash v. Nanhku[2]’ wherein it was observed that ‘by Act 46 of 1999, there was a sweeping amendment by which Rules 17 and 18 were wholly omitted so that an amendment itself was not permissible, and ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 17 by Act 22 of 2002 w.e.f. 1-7-2002, with a provision permitting amendment in the first part which said that the court may at any stage permit amendment as described therein. But it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial’. 9. The apex Court also referred to the decision in ‘Salem Advocate Bar Assn. v. Union of India[3]’, wherein it was noted as follows: “Under the provisions of Order 6 Rule 17 CPC have been substantially amended by the CPC (Amendment) Act 2002. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order 6 Rule 17 was due to the recommendation of the Law Commission since Order (sic Rule) 17, as it existed prior to the amendment, was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of courts and therefore, by the Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recognising the power of the court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their court case, and manifests the absence of due diligence on the part of the appellants disentitling them to relief." 10. After referring to the above decision the apex Court in Vidyabai’s case, further held as follows: “It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. 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.” 11. The above decision therefore makes it clear that the conditions to be fulfilled under the proviso, namely, that the party seeking amendment inspite of due diligence could not raise the matter before the commencement of the trial, is a jurisdictional fact to be considered by the Court before it can assume the jurisdiction to permit the amendment. It therefore follows that the party as to necessarily plead and prove that in spite of due diligence he could not raise the matter before commencement of trial and only on being satisfied about the genuineness of the said plea, and only after coming to the conclusion that in spite of due diligence, the party could not raise the matter earlier, the Court will have jurisdiction to permit the proposed amendment. In the absence of any such finding and without reaching the conclusion that inspite of due diligence, the party could not have raised the matter earlier, the Court would not be able to exercise the jurisdiction to permit the proposed amendment. No doubt, the provision under Rule 17 enables the Court to allow either party to alter or amend his pleadings for the purpose of determining the real question in controversy between the parties. However the proviso imposes on embargo to exercise of such power, when the application is filed after commencement of the trial and restricts the authority of the Court to allow the proposed amendment only to such situation where the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter earlier. Thus, before permitting an amendment subsequent to commencement of the trial, the Court has to necessarily apply its mind and reach the conclusion on the question as to whether in spite of due diligence, the party could not have raise the matter before commencement of the trial. 12. In Vidyabai’s case (supra), the apex Court set aside the impugned judgment of the High Court, observing that the High Court has not applied its mind on the jurisdictional issue. The impugned order in the present case does not deal with the question as to whether or not the respondent-plaintiff in spite of due diligence could not have raised the matter before commencement of the trial, though a specific objection was taken in the counter filed by the petitioner-defendant stating that under the provisions of Order 6 Rule 17 CPC, the application for amendment shall not be allowed after the trial has commenced. 13. Learned counsel for the respondent-plaintiff relied upon the decision in ‘Revajeetu Builders & Developers v. Narayanaswamy & sons[4]’, wherein the apex Court held that ‘courts have very wide discretion in the matter of amendment of pleadings, but they must exercise their power judiciously and with great care’. 14. In the above decision, certain factors to be taken into consideration while dealing with the applications for amendment are also set out. The proposition laid down in the above decision, having a bearing on the question of allowing or rejecting the application for amendment cannot be disputed. The question that has arisen in the present case is whether the proposed amendment can be permitted after commencement of trial in the absence of any finding that inspite of due diligence, the respondent-plaintiff could not have raised the matter earlier and whether the trial Court could assume jurisdiction to exercise the power to permit the amendment, without reaching the above conclusion, in the light of the decision of the apex Court in Vidyabai’s case (supra), wherein it is stated that the said aspect is a jurisdictional issue. 15. In ‘Rajkumar Gurawara (dead) v. M/s S.K.Sarwagi & Co.Ltd.,[5]’ the apex Court held as follows: “….The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this rule is subject to proviso appended therein. The said rule with proviso again substituted by Act 22 of 2002 with effect from 1-7-2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings able to satisfy the Court that in spite of due diligence could not raise the issue before the commencement of trial and the Court satisfies their explanation, amendment can be allowed even after commencement of the trial. To put it clear, Order VI Rule 17 C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event; it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso.” 16. In the circumstances of the case and in the light of the principles laid down by the apex Court in the above decisions and in view of the fact that the impugned order does not disclose the application of mind to the jurisdictional aspect arising under the proviso to Order 6 Rule 17 CPC, it is considered a fit case to remand the matter to the trial Court for fresh consideration and disposal in accordance with law after duly recording the finding as to whether or not the respondent-plaintiff inspite of due diligence could not have raised the plea contained in the proposed amendment before commencement of the trial. The impugned order is accordingly set aside and the matter is remanded to the trial Court as stated above. 17. In the result, the civil revision petition is disposed of accordingly. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 20.09.2011 bss [1] (2009)2 SCC 409 [2] (2005) 4 SCC 480 [3] (2005)6 SCC 344 [4] 2009 (8) SCJ 401 [5] 2008(4) SCJ 680