IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRDESH:: HYDERABAD TUESDAY, THE FIRST DAY OF NOVEMBER TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.2316 OF 2011 Between: Smt.Nanchari Shailaja and two others …Petitioners A n d Smt.P.Rajamma @ Rajamani and others ..Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.2316 OF 2011 ORDER: This civil revision petition is directed against the order dated 14-06-2011 in I.A.No.121 of 2010 in O.S.No.85 of 2005, on the file of the Senior Civil Judge, Nizamabad, wherein the said application filed by the petitioners herein, the plaintiffs, under Order VI Rule 17 CPC, seeking amendment of the plaint schedule, was dismissed. 2. Heard the learned counsel for the petitioners and the learned counsel for the respondents. Perused the record. 3. The petitioners herein filed the suit against the respondents for declaration of title and recovery of possession of the plaint schedule land and for mandatory injunction for removal of the huts, sheds and structures situate over the suit land. The defendants filed written statement contesting the suit. The defendants filed another suit O.S.No.269 of 2003 against the plaintiffs herein for permanent injunction in respect of the same property. The plaintiffs herein filed O.P.No.977 of 2005 before the District Judge, Nizamabad seeking transfer of the suit O.S.No.269 of 2003 to be clubbed with the present suit O.S.No.85 of 2005 and accordingly the said suit was transferred and re-numbered as O.S.No.140 of 2007. The joint trial was conducted in both the suits and the recording of evidence was completed on both sides and the matter reached the stage of arguments. At that stage, the plaintiffs filed I.A.No.121 of 2010 under Order VI Rule 17 CPC for amendment of the plaint schedule by substituting the existing the plaint schedule with a fresh schedule. The respondents/defendants filed a counter opposing the said application. By the impugned order, the learned Senior Civil Judge dismissed the application for amendment. Hence, the present revision by the plaintiffs. 4. According to the plaintiffs, the defendants illegally occupied the suit land eight years prior to filing of the suit and raised certain temporary structures, huts etc., which were not assigned any municipal numbers. In the affidavit filed in support of the application, it is stated that the then counsel Sri P.V.Raj Ganesh got typed the municipal numbers due to oversight though, in fact, the structures on the suit site do not have any municipal numbers. In the plaint schedule in O.S.No.33 of 2003, which was filed by the defendants herein, the municipal door numbers have been mentioned as 9-20-140/2, 9-20- 136/1A, 9-20-138, 9-20-136/1, 9-20-138/1, 9-20-140 & 9-20-140/1 for the structures in the extent of Ac.0-20 gts in Sy.No.2458/A within the following boundaries: North: Nizamabad-Bodhan Road, South: Land of Tulla Vishwanatham in Sy.No.2456, East: Land of Tulla Vishwanatham in Sy.No.2458/AA and West: Distributory No.53/1 of Nizamagar Canal and then Autonagar. According to the plaintiffs, though the structures on the suit land have no municipal numbers, by inadvertence the plaint schedule filed by the defendants herein in O.S.No.33 of 2003 (re-numbered as O.S.No.269/2003 and again re-numbered as O.S.No.140/2007) has been copied into the plaint schedule of the present suit. The plaintiffs would further contend that the land described in the plaint schedule in O.S.No.140 of 2007 is different and is situate away from the plaint schedule land in O.S.No.85 of 2005 and the suit land herein is an agricultural land and is not having any houses with municipal door numbers. The plaintiffs, therefore, sought amendment of the plaint schedule by deleting municipal door numbers, which according to them were noted by oversight. The respondents/defendants, on the other hand, would contend that the suit property ceased to be an agricultural land long ago and it is situate on the outskirts of Nizamabad municipality and the municipal numbers given by the respondents pertain to the huts and sheds located in the said land. The respondents would further contend that after prolonged trial, the suit has reached the stage of arguments, even six months prior to filing the present application and without advancing the arguments, the plaintiffs have come forward with the present petition only to protract the proceedings. 5 . By proposed amendment, the plaintiffs intend to substitute the plaint schedule with a fresh one by deleting the municipal door numbers mentioned in the plaint schedule for the structures situate thereon. Even according to the plaintiffs, the suit land mentioned in the plaint schedule herein and in the plaint schedule in O.P.No.140 of 2007 filed by the defendants is one and the same and on that premise only the plaintiffs filed O.P.No.977 of 2005 seeking transfer of the suit O.S.No.269 of 2003 (O.S.No.140 of 2007) to the file of the Senior Civil Judge, Nizamabad for a joint trial with the present suit. The present suit being one for declaration of title and recovery of possession is a more comprehensive one and, therefore, directed to be transferred and accordingly the same was re-numbered as O.S.No.140 of 2007, on the file of the Senior Civil Judge and both the suits were clubbed and joint trial was conducted. The plea of the plaintiffs that by inadvertence the door numbers were mentioned in the plaint schedule, cannot, therefore, be countenanced. The question as to whether or not the structures on the suit land were assigned any municipal door numbers, is a matter to be considered on evidence by the trial Court. The plea of the plaintiffs that due to inadvertence the municipal door numbers came to be mentioned in the plaint schedule while copying the same from the schedule of O.S.No.140 of 2007 is baseless and remains unsubstantiated. The very contention of the defendants is that the structures were assigned municipal door numbers as the land ceased to be an agricultural land long ago. As rightly contended by the learned counsel for the respondents/ defendants, the mentioning of the door numbers to the structures in the pliant schedule is an admission in the pleading on the part of the plaintiffs and deletion of the same by way of the proposed amendment would certainly have the effect of taking away the admission and thereby cause prejudice to the contention of the defendants. It is well established principle of law that any amendment that seeks to cause prejudice to the other side is impermissible. 6. Further, the application for amendment is filed when the matter was pending for six months, at the stage of arguments. The proviso to Order VI Rule 17 CPC as amended by the Amendment Act 22 of 2002 bars any application for amendment 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. Before permitting any amendment, the Court has to necessarily record a finding to the effect that in spite of due diligence the party could not have raised the matter before the commencement of the trial. 7. In VIDYABAI V. PADMALATHA[1]’, 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.” 8. The above decision makes reference to the decision in N.PANDEY V. SWAMI KESHAVPRAKESHDASJI[2]’ and it was further held as follows: “…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.” 9. In view of the principles laid down in the above decision, unless the party is able to establish that in spite of due diligence he could not have raised the matter before the commencement of trial, the Court would not have jurisdiction to permit such amendment, in view of the proviso. In the present case, the affidavit filed in support of the application does not disclose any grounds as to why the petitioners could not raise the matter before the commencement of the trial. On the other hand, the petitioners filed Tr.O.P.No.977 of 2005 on the ground that the subject matter of both the suits is one and the same. The petitioners cannot, therefore, be permitted to amend the plaint by substituting the plaint schedule with a fresh one at this stage when the matter has reached the fag end of trial, in view of the bar contained in the proviso to Order VI Rule 17 and also the fact that the proposed amendment would certainly cause serious prejudice to the contention of the defendants. 10. The learned counsel for the petitioners invited attention to a decision of the Apex Court in PURAN RAM V. BHAGURAM & ANR[3] wherein it was held that an amendment sought to rectify the mistake in the description of the suit property in the plaint can be allowed as it does not change the nature of the suit. The above decision related to a case of specific performance and it was held permissible to amend the description of the property not only in the plaint but also in the agreement by virtue of Section 26 of the Specific Relief Act, which deals with rectification of the mistakes which do not express the real intention. The decision cited, therefore, is not applicable to the facts of the present case. 11. The impugned order, dismissing the application filed by the petitioners for amendment of the plaint schedule, does not, therefore, call for any interference. 12. In the result, the civil revision petition is dismissed. Interim stay granted earlier stands vacated. There shall be no order as to costs. _____________________ G.V.SEETHAPATHY, J 01st November, 2011 Lrkm. [1] AIR 2009 SC 1433 [2] (2006)12 SCC 1 [3] AIR SCW 2265