CW – 4836/2008 -Om Prakash & Anr. Vs. Anil Kumar & Ors. Order dt.29.7.08 1/2 S.B. CIVIL WRIT PETITION NO.4836/2008 Om Prakash & Anr. Vs. Anil Kumar & Ors. Date of order : 29th July, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. R.K. Thanvi for the petitioner. --------- 1. Heard learned counsel. 2. This writ petition is directed against the order dated 13.5.2008 whereby the learned trial court allowed the application under Order 6 Rule 17 C.P.C. of the plaintiff allowing the amendment in the plaint wherein the plaintiff clarified by way of amendment that he was not the real son of late Ganga Ram but adoptive son. 3. The plaintiff filed the suit for cancellation of decree in favour of the defendant for eviction against the respondents No.3, 4 and 5 and also for injunction. 4. The learned trial court in the impugned order has held that by this amendment if the plaintiff is allowed to clarify the position that he was not real son of Ganga Ram but adoptive son which will not change the nature of the suit nor it will adversely effect the trial. The trial had commenced just after framing of the issue in the present case. 5. The learned counsel for the defendant-petitioner Mr. R.K. Thanvi relying on the decision of the Supreme Court in Ajendraprasadji N. Pande & Anr. Vs. Swami Keshavprakeshdasji N. & Ors. - 2007 AIR SCW 513 submitted that the amendment in question could not be permitted after commencement of trial as held in para 57 of the judgment wherein it has been laid down that the trial commences when the issues CW – 4836/2008 -Om Prakash & Anr. Vs. Anil Kumar & Ors. Order dt.29.7.08 2/2 are settled. He submitted that in the present case issues were settled on 17.3.2008 whereas the plaintiff's application was filed on 15.4.2008. 6. As far as the aforesaid proposition of law is concerned, there is no dispute because the proviso of Order 6 Rule 17 inserted w.e.f. 1.7.2002 after amendment in the law on 1.7.2002 the said proviso clearly stipulates that no application for amendment would be allowed after the trial has commenced, if the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before commencement of the trial. In the present case, the matter was set down for plaintiff's evidence and before that the plaintiff filed the said application for amendment which has been allowed by the learned trial court. 7. Having heard learned counsel and upon perusal of the impugned order, this Court is of the opinion that the learned trial court has not committed any error in allowing the said application under Order 6 Rule 17 which is of clarificatory nature and is likely to advance the cause of justice by clarification of the status of the plaintiff. It is not likely to change the nature of the suit at all and, therefore, the learned trial court has given proper reasoning for allowing the said application. This Court finds no ground to interfere under Article 227 of the Constitution of India. 8. The writ petition is accordingly dismissed. [ DR. VINEET KOTHARI ], J. item no.7 babulal/