CRP 379/2010 BEFORE HON’BLE THE CHIEF JUSTICE MR.MADAN B. LOKUR The petitioners are aggrieved by an order dated 17.8.2010 passed by the Civil Judge, Jorhat in T.S. No.23 of 2009. The grievance of the petitioners is that an application filed by the res pondent under Order 6, Rule 17 of the Code of Civil Procedure for amendment of t he plaint was allowed even though there was no justification for doing so, more particularly since the trial had commenced. From the order sheets that have been filed, which are not disputed, it a ppears that on 7.11.2009 the issues in the case were settled and the matter was fixed on 25.11.2009 for discovery and admission of documents. On 25.11.2009, learned counsel for both the sides filed a list of witnes ses and the matter was adjourned on 16.12.2009 for filing the evidence of the pl aintiffs. It appears that the plaintiffs did not file their affidavit by way of ev idence or produce any witnesses on 16.12.2009. Instead, an adjournment appears t o have been taken. Thereafter, on or about 6.2.2010, the respondents moved an application f or amendment of the plaint. All that is stated in the application is that due to inadvertence some facts were left to be described which are necessary for a jus t decision of the case and for the purpose of determining the real controversy b etween the parties. The learned Trial Judge, by the impugned order dated 17.8.2010 allowed t he application for amendment. Feeling aggrieved, the defendants have preferred this petition. It is submitted by learned counsel for the petitioners that as per the p roviso to Order 6, Rule 17 of the Code of Civil Procedure, since the trial has c ommenced and a date was fixed for leading evidence, the amendment ought not to h ave been allowed unless the Trial Judge was satisfied that in spite of due dilig ence the plaintiff could not have raised the matter before commencement of trial . Learned counsel for the respondent disputes that the trial has commenced . While doing so, she has placed reliance on Kailash -Vs.- Nanhku and others, 20 05 (4) SCC 480. In that decision, particularly in paragraph-13, on which reliance has be en placed, the Supreme Court clearly observed that in any civil dispute, the tri al begins when issues are framed and the case is set down for recording of evide nce. As can be seen from the facts of the case, issues were framed in the mat ter on 7.11.2009 and the matter was fixed on 16.12.2009 for evidence. There can be no doubt that the trial commenced on 16.12.2009. In view of the proviso to Order 6, Rule 17 of the Code of Civil Procedur e, it is clear that the learned Trial Judge should not have allowed the amendme nt unless it was shown that despite due diligence the plaintiff was unable to ra ise the matter before commencement of the trial. On merits also, the application filed by the plaintiff only mentions tha t due to inadvertence some facts were left to be pleaded. There is no mention th at despite due diligence the facts could not be set out. There is no finding in this regard by the Trial Court also. On merit therefore, I find no reason to agr ee with the view expressed by the learned Trial Judge. Allowing the application for amendment was clearly not warranted by the learned Trial Judge. Under the circumstances, the order dated 17.8.2010 is set aside. The petitioners are entitled to costs of Rs.1000/- from the respondents.