w R HIGH COURT OF CHHATTISGARH AT BILASPUR Sinqle Bench: Hon’ble Shri Justice Prashant Kumar Mishra Writ Petition (227) No.3506 of 2009 Shyam Sundar Agrawal‘ VEI‘SUS Bhagwandas Agrawal andanother ORDER Post for 4-5-2010 Sdl— Prashant Kumar Mishra Judge ’ $9 HIGH COURT OF CHHATTISGARH AT BILASPUR Sinqle Bench: Hon’ble Shri Justice Prashant Kumar Mishra Writ Petition (227) No.3506 of 2009 Petitioner Shyam Sundar Agrawal versus Respondents Bhagwandas Agrawal and another Present: Shri Sanjay S. Agrawal, counsel for the petitioner. r Shri Ratan Pusty, counsel for respondent No.1. Shri Arvind Dubey, Panel Lawyer for the State/respondent No.2. A Writ Petition under Article 227 of the Constitution of india ORDER (Passed on 04 _o>’-2o10) The instant petition under Article 227 of the Constitution of India has been preferred by the plaintiff challenging the order passed by the trial Court on 217-4—2009rbejectingihis applications under Order 1 Rule 10 and» Order 6 Rule 17 of the Code of Civil Procedure, 1908 (henceforth ‘the Code, 1908’). as“. 2. The plaintiff has preferred the}s'uit for a declaration that he is the owner of the suit land and the order of mutation in favour of the defendant No.1 is illegal. According to the plaintiff, the gift-deed dated 25—3-1975, allegedly executed by his father Ganpatlal in favour of plaintiffs grand mother Ramibai antitand‘e Bhagwandas is illegal. 3. issues have already been framed and the matter was posted for Admittedly, after filing of the written'statement by the defendants, f tit; gun; lg: o. Licwtttd ,-'. . \ ?A evidence in the trial Court. At this stage, the plaintiff preferred an application under Order 6 Rule 17 of the Code, 1908 (Annexure P—5) to piead and raise an alternative case that even if the said gift is found to be vaiid, the plaintiff is entitled to share from the share of his grand mother Ramibai. By application under Order 1 Rule 10 of the Code, 1908 (Annexure P-6), the plaintiff wanted to implead new defendants, who may have similar share from the share of Ramibai in the suit property. 4. Learned trial Court’has rejectedibothlthie appliCationsJ' 5. Learned counsel for the petitioner submits that raising of alternative plea is permissible and the trial Court has not dealt with the Issue properly and has rejected the applications wrthout recording a f finding as to whether the amendment Is necessary or not 6. On the other hand, learned counsel for respondent No 1/defendant No1 submits that In View of pr vrso to Rule 17 of Order 6 of the Code, 1908, the amendment has rightly been rejected and that inconsistent pleas deserves to be rejected. 7. lt is not disputed between the parties that issues were struck by / the trial Court on 8-2-2008 and it was fixed for recording of evidence for the first time on 2-12-2008. The subject applications were filed on 6-2-2009 and 17-3-2009. 8. After the amendment in the provision ofRule 17 of Order 6 of the / Code, 1908, it has been provided that,no.application for amendment j’ shall be allowed after the trial has commenced, unless the Court $ comes to the conclusion that in spite of we diligence, the party could not have raised the matter before the commencement of trial. 9. ln the matter of 'Vidyabai and others vs. Padmalatha and another, (2009) 2 SCC 409, the Hon’ble Supreme Court has held that the date on which the issues are framed is the date of first hearing and that tiling of an affidavit in lieu of examination—in-chief of the witness would amount to commencement of proceedings. After referring to Kailash vs. Nanhku, (2005) 4 SCC 480 and Ajendraprasadji N. Pandey vs. Swami Keshavprakeshdasji N., (2006) 12 SCC 1, the Supreme Court reiterated that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence. 10. in the present case, there is no dispute that on the date when the subject applications were moved, the issues were already settled and the matter was hxed for evidence. ln the light of these facts, if the application under Order 6 Rule 17 of the Code,‘ 1908 is perused, it would appear that the plaintiff has not stated anything to the effect that ii in spite of due diligence, he could not have raised the matter before the commencement of trial. from the family-tree, mentioned in paragraph 8.1 of the writ petition, it would appear that Ramibai died in 1980, therefore, it is not a case where the plaintiff was not aware of the fact of Ramibai’s death or the consequences flowing therefrom. in the case of Ajendraprasadji N. Pandey vs. Swami Keshavprakeshdasji N. (supra), the Supreme Court has noted that it is necessary to plead in r-o- he application that in spite of due diligence the proposed amendment ould not be raised by the applicants. Similar is the case in the present / i i ia ‘ . ....IJy,\./cr.: it 1: g5? matter inasmuch as the plaintiff has not"stated anything about due diligence in his application. 11. . in view of the above, the application for amendment of the plaint was clearly barred under the proviso to Rule 17 of Order 6 of the Code, 1908, as has been settled by the Hon’bie Supreme Court in Vidyabai and others vs. Padmalatha and another (supra), Kai/ash vs. Nanhku (supra) and Ajendraprasadji N. Pandey vs. SWami Keshavprakeshdasji N. (supra). Rejection of both the applications under Order 6 Rule 17 and under Order 1 Rule 1O of the Code, 1908, thus, does not suffer from any infirmity. 12. In the result, the petition under Article 227 of the Constitution of Gopal India fails and is hereby dismissed. ‘ _/"\ . , l Sd/a ‘ i Prashant Kumar Mishra t Judge