HON'BLE SRI JUSTICE RAMESH RANGANATHAN CIVIL REVISION PETITION No.5880 of 2009 ORDER: This Civil Revision Petition is filed by the petitioner-plaintiff aggrieved by the order of the Additional Senior Civil Judge, Srikakulam in I.A.No.600 of 2009 in O.S.No.104 of 2007 dated 02.11.2009. I.A.No.600 of 2009 was filed, under Order 6 Rule 17 C.P.C., to accord permission to the petitioner to amend the plaint averments as also the relief sought for in the Suit. The Suit was initially filed for declaration of title and permanent injunction. I.A.No.132 of 2007, filed by the petitioner herein for temporary injunction, was dismissed by the Trial Court on 03.07.2007 aggrieved by which the petitioner filed CMA.No.19 of 2007 which was also dismissed. Contending that, on the day after the order was passed in the C.M.A., the respondent-defendant had trespassed and had forcibly occupied the land, which was hitherto in the possession of the petitioner, the amendment was sought to include delivery of possession. The Court below, in the order under revision, disbelieved the petitioner’s contention of being dispossessed on the ground that no police complaint was given and, even in I.A.No.583 of 2009 filed under Order 9 Rule 9 C.P.C. to set aside the earlier order dismissing the Suit for default, this fact was not mentioned. The Court below held that the amendment as sought was mala fide, and dismissed the application. It is necessary to note that the petitioner-plaintiff and the respondent-defendant are brothers. The petitioner herein is a Headmaster of a School. Sri K.Venkata Rao, Learned Counsel for the petitioner, would submit that the mere fact that the petitioner had not filed a police complaint, or had referred to his being dispossessed in the I.A. filed to set aside the dismissal order, would not render his application, seeking amendment of pleadings and the prayer, mala fide. Learned Counsel would submit that amendments should be liberally granted; an amendment can be sought at any stage of the Suit proceedings; and, in the present case, it is only PW.1 who had filed his affidavit in lieu of chief-examination and had not even been cross-examined as on the day on which the application, seeking amendment, was filed. On the other hand, Sri Tarlada Rajasekhar Rao, Learned Counsel for the respondent-defendant, would submit that the application, seeking amendment of prayer, is mala fide; it was filed only to knock away the property which belonged to the respondent-defendant; the tests, prescribed by the Court, for amendment of prayer, are not satisfied in the case on hand; and the Court below had rightly rejected the application for amendment. Learned Counsel would rely on Rajkumar Gurawara v. M/s.S.K.Sarwagi & Co. Pvt. Ltd.[1] and Revajeetu Builders and Developers v. Narayanaswamy and Sons[2]. I n Rajkumar Gurawara1, the Supreme Court held that, while Order 6 Rule 17 C.P.C. conferred jurisdiction on the Court to allow either party to alter or amend the pleadings at any stage of the proceedings on terms; while pre-trial amendments should be allowed liberally; a stricter view should be taken of post-trial amendments as, at that stage, the question of prejudice being caused to the opposite party may arise; and it is incumbent on the part of the Court to satisfy the conditions in the proviso to Order 6 Rule 17 C.P.C. I n Revajeetu Builders and Developers2, the Supreme Court held that Order 6 Rule 17 C.P.C. was one of the important provisions of the C.P.C; for allowing an amendment it was not just costs, but the delay caused thereby, the benefit of such delays and the additional costs which had to be incurred by the victim of the amendment, which should also be borne in mind; the Court must scientifically evaluate the reasons, purpose and effect of the amendment; all these factors must be taken into consideration while awarding costs; the general principle is that the Court, at any stage of the proceedings, may alter or amend the pleadings in such manner, and on such terms, as may be just; all amendments were to be allowed which were imperative for determining the real question in controversy between the parties; for unnecessary delay and inconvenience the opposite party must be compensated with costs; certain parameters must be taken into consideration by the Court while imposing costs including (i) at what stage the amendment was sought; (ii) whether the amendment was sought at the pre-trial or the post-trial stage; (iii) the financial benefit derived by one party, at the cost of the other party, should be properly calculated in terms of money, and the costs should be awarded accordingly; (iv) the imposition of costs should not be symbolic but realistic; and (v) the delay and inconvenience caused to the opposite side must be clearly evaluated in terms of additional and extra costs. The Supreme Court further held that the purpose of imposing costs was to discourage mala fide amendments designed to delay the legal proceedings, compensate the other party for the delay and the inconvenience caused, compensate the other party for avoidable expenses on the litigation which had to be incurred by the opposite party for opposing the amendment, and to send a clear message that the parties have to be careful while drafting the original pleadings. All the observations in the aforesaid judgments, on which reliance is placed by Sri Tarlada Rajasekhar Rao, Learned Counsel for the respondent-defendant, relate to the costs required to be imposed by the Court while according permission to amend the pleadings. While the Learned Counsel would contend that the amendment as sought was mala fide, it is well settled that malice is easier pleaded than established; and the degree of malice required to be established is of a very high order only; and it is only if malice is established, would the Court be justified in rejecting the request for amendment. The mere fact that the petitioner-plaintiff did not file the police complaint against his brother (the respondent-defendant), would not render his contention of being dispossessed, a day after the C.M.A. was filed, mala fide. It is not for this Court to examine whether such a contention is true or false as these are matters to be examined by the Court below. All that can be said is that such a plea cannot be held to be mala fide. The application filed, to set aside the earlier order dismissing the Suit, would necessitate reasons being given for the absence of the petitioner’s counsel on the day of the hearing resulting in the dismissal of the Suit, and the fact of the petitioner being dispossessed is wholly irrelevant to such an application. Viewed from any angle, the application seeking amendment cannot be categorized as “mala fide”. That, however, does not conclude the issue. The proviso to Order 6 Rule 17 C.P.C. prohibits an application for amendment being 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 commencement of trial. This aspect has not even been examined by the Court below. I consider it appropriate, in such circumstances, to set aside the order under revision and remand the I.A. back to the Court below for its consideration afresh in the light of the proviso to Order 6 Rule 17 C.P.C. The Court below shall, after hearing both sides, pass orders afresh, in accordance with law, within a period of two months from the date of receipt of a copy of this order. The Civil Revision Petition is allowed to the extent indicated above. RAMESH RANGANATHAN,J Dt:09-09-2010 usd [1] AIR 2008 SC 2303 [2] 2009(10) SCC 84