HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITKON N0. 5099 of 2005 PETITIONER :Dutiya Sagar, aged about 62 years, s/o Tiknu Sagan resident of Lakhe Nagar Dhaal, House No. 608/50, Ward No. 50: Raipur (Chhattisgarh) : Mohanlal Dange, aged about 40 years: s/o Late Keshav Singh Dange, resident of Pandn‘ Ward, Raipur (Chhattisgarh) WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon’ble Shri Satish K. Agm'hotri, J. Shri Sanjay K. Agrawal, Advocate with Shri Sourabh‘Sharma, Advocate for the petitioner. Shri Kshitij Sharma, Advocate for the respondent. VERSUS RESPONDENT ORAL ORDER (Fassed on 04a; day of February, 2009) With the consent ofleamed counsel appearing for the parties, the matter By this petition, the petitioner seeks to challenge the order dated 06.09.2005 (Annexure P/5), passed by the 15‘ Additional Civil Judge, Class I, Raipur, in Civil Suit No. 7~A/2005 whereby the application tiled by the petitioner/plaintiff for amendment of the suit, has been The brief facts, in nutsheli, are that the petitioner/plaintiff flied a civil suit for declaration and permanent injunction on 12.01.2005 (Annexure P/l), before the Court of I“ Civil Judge, Class l, Raipur. The ~ respondent/defendant tiled his written statement denying the submissions made in the plaint, and vide para 5 and 6 of the written statement, stated that in Civil Suit No. 202-A/96, an ex-parte decree dated 30.09.1997 has been passed against the petitioner/plaintiff for handing over the possession of the disputed house and the vacant” possession ofthe same has also been delivered on 04.05. 1999. After receiving the written statement, the petitioner/plaintiff, on 13.04.2005 filed an application before the Court below under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (Annexure P/3) seeking amendment in the plaint stating that the ex-parte decree dated 30.09. 1997, and execution ofthe same is contrarv to law and denied the submission of the respondent/defendant. The respondent/defendant filed his reply to the amendment application on 38.7.2005 (Annexure PM). ’\\ The learned court below, after hearing the parties, rejected the \ \ 2 application Vide impugned order dated 06.09.2005 holding that the judgment and decree in Civil Suit N0. 202-Af96 was pagsed on 30.09. 1997. Ths plaintiff/petitioner kmw about the judgment and decree efore filing of the suit. Thus: at the belated stage, atter the trial has 5. Shri Sourabh Shanna, learned counsel appearing for the petitioner submits that Court below ought to have allowed the amendment sought by the petitioner/plaintiff. He further relies on a decision of Hon’ble Couit in the matter of Rajesh Karmar Aggarwal 0‘2 Others v. KKModi 0% omersl. 6. Per oontra, Shri Kshitij Shanna, learned counsel appearing for the respondent/defendant submits that the Court below has rightly rejected the application of the petitioner/plaintiff for amendment ofthe suit. 7. I have heard learned counsel for the petitioner, perused the pleadings and documents appended thereto. Order 6 Rule 17 ofthe C.P.C provides for amendment ofthe plaint which reads as under: “1’7. Amendment of pleadings.— The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement oftria .” 8. The basic requirement is that the amendment is permissible if it is necessary for the purpose of determining the real question in controversy between the parties. The amendment sought for by the petitioner does not determine the real question between the parties in the pending suit. 9. The Hon’ble Supreme Court, in the matter ofState ofA.P. arid others v. Pioneer Buiiders, A.P.2 has settled the principles governing amendment ofthe pleading which reads as under: “21 .......Nevertheless, one distinct cause of action cannot be substituted for another nor the subject-matter of the s‘uit can be changed by means of an amendment. The following passage from the decision of the Privy Council in Ma Shwe Mya V. Maung Mo Hnaung commenced, such amendment is not peimissibie. Hence this petition. Supreme 3 succinctly summarieses the principle which maV ba kept in mind while dealing with the prayer. for amendment ofthe pleadings: “All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit ....... ” The suit was filed on 12.01.2005 and the written statement was filed on 15.02.2005. After filing of the written statement, the plaintimpetitioner tiled the application for amendment of the plaint on the basis of judgment and decree dated 30.09.1997. Order 6 Rule 17 of the CPC makes it clear that after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before commencement oftrial, no application for amendment shall be allowed. Amendment in the pleadings should not be permitted in the present case as the trial has already commenced and the petitioner/plaintiff has failed to establish that the petitioner did not knew about the judgment and decree as mentioned above, inspite of due diligence. Thus, the order passed by the Court below is unexceptionable, just and proper and needs no interference. Applying the well settled principles of amendment of pleadings‘to the facts of the case wherein the cause of action and the subject matter of the suit is sougt to be changed'by means of amendment, the order‘ impugned is legal and proper. Withoutexpressing any opinion on the merits ofthe case, the petition is dismissed. No order asto costs. 13. Consequently, M(W)P No. 4121/2005, application for grant of interim relief, also stands disposed of. .\\ Sd/- Satish K. Agnihotri Judge Amit 1%“ W l2.