IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.160 of 2011 Pramod Kumar & Ors Versus Manju Sinha & Ors ---------------------------------- 5/ 29.08.2011 Heard learned counsel for the parties. The defendants of Title Suit no. 344 of 2008 are the petitioners in the instant writ application. The plaintiffs brought a suit for partition. The defendants filed their written statements and issues were framed. Thereafter the defendants sought amendment in the written statement contained in paragraph nos. 2 and 3. In paragraph 2 of the amendment petition, the defendants’ state that they only want to add that marriage in Siwan took place with Jagrua, daughter of Mili. In paragraph 3, the petitioner wanted to incorporate some agreement to sell etc. The trial court rejected the amendment petition, as the defendants nowhere pleaded in his petition that in spite of due diligence they could not incorporate those facts in the written statement. On the other hand, learned counsel for the petitioner submits that the amendment should have been allowed as it is very formal in nature, as the name of the woman with whom marriage had taken place was to be incorporated. He submits that the suit is of the year 2008 and the amendment petition was filed just after filing of the written statements. Learned counsel for the petitioners submits that in case of North Eastern Railway Administration Gorakhpur Vs. Bhawan Das (D), reported in A.I.R. 2008 SC 2139, the Hon’ble Apex Court observed that amendment is permissible 2 at any stage provided that the same does not work out injustice to the other party and is necessary for determination of question of controversy. On the other hand, counsel for the respondents- plaintiffs submits that the defendants had not stated anywhere that in spite of due diligence he could not incorporate the aforesaid facts in the written statement. In support of his submissions, counsel for the respondents relied upon a decision in case of Sree Narayan & Ano. Vs. Mahendra Prasad Yadav and Ors., reported in 2006 (2) PLJR 485. In the aforesaid judgment, a Bench of this court observed that in view of insertion of proviso introduced in the year 2002, amendments may be allowed once trial has commenced, only if the conditions mentioned therein is satisfied. I have heard the learned counsel for the petitioners and the State. The proviso to Order VI Rule 17 of C.P.C. states 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 raise the matter before commencement of trial. The decision in case of North Eastern Railway Administration Gorakhpur (Supra) would not be of much help to the petitioner, as the suit was filed prior to amendment introduced in 2002. The first amendment seeking to incorporate the name of the girl with whom marriage took place is formal in nature and as such the order rejecting to incorporate the aforesaid 3 amendment is set aside. So far as second amendment is concerned, no averment has been made in amendment petition that despite due diligence the amendment sought was not incorporated in the written statement. As such the trial court rightly rejected the second amendment discussed above. As a result, this application is dismissed in part as observed above. Uday/ (Samarendra Pratap Singh, J.)