Judgment : G. Rajasuria, J.Heard the learned counsel for the parties. 2. For convenience sake, the parties are referred to here under according to their litigative status in the suit. 3. Broadly but briefly, narratively but precisely, the relevant facts, which are absolutely necessary and germane for the disposal of this application would run thus: (a) The respondent/plaintiff filed the suit seeking the following reliefs: to direct the defendant to pay the plaintiff a sum of Rs. 10,63,744/- together with interest at 12% p.a. from the date of plaint till payment. to direct the defendant to pay the cost of the suit. (extracted as such) (b) The defendant filed the written statement; after framing of the issues, the matter was posted for trial and the trial also commenced on 13. 2008; P.W.1 was examined and Exhibits P-1 to P-10 were marked. When the matter has been posted for cross examination of P.W.1, the Application No.1752 of 2008 was came to be filed by the defendant for getting the written statement amended so as to incorporate para Nos. 10A and 10B as under: Para 10A: This defendant states that C.R.P. Nos. 1631-32 of 2005 were dismissed on merits on 12. 2006 by this Hon’ble Court and the S.L.P. (C) No. 10785 of 2007 filed by it against the same was dismissed at the admission stage by the Hon’ble Supreme Court of India. The CRPs were presented on 16. 2004 and plaintiff was served with typed set of papers in CRPs on 21. 2005, since he had filed Caveat petitions in the intended CRPs. Thereafter plaintiff filed the present suit in this Hon’ble Court on 16. 2005 in haste, even before finality was reached in R.C.O.P. No.154 of 2000. The CRPs were heard on merits and were dismissed by this Hon’ble Court on 12. 2006 subsequently. As the judgment and decrees in R.C.A. Nos.598 and 662 of 2002 of the Appellate Authority (VIII, Small Causes Court at Chennai) got merged in the judgment and decrees in C.R.P. Nos. The CRPs were heard on merits and were dismissed by this Hon’ble Court on 12. 2006 subsequently. As the judgment and decrees in R.C.A. Nos.598 and 662 of 2002 of the Appellate Authority (VIII, Small Causes Court at Chennai) got merged in the judgment and decrees in C.R.P. Nos. 1631-32 of 2005, the present suit based on the judgment and decrees in .R.C.A. Nos.598 and 662 of 2002 is not maintainable and is liable to be dismissed on the doctrine of “merger” besides the suit being premature as finality was not reached in .R.C.A. Nos.598 and 662 of 2002 on the date when the plaint in the suit was presented in this Hon’ble Court. Para 10B: This defendant states that the fair rent proceedings in R.C.O.P. No.154 of 2000 culminating in S.L.P. (C) No. 10785 of 2007 are unsustainable since RCOP is against V.M. Natesa Chettiar & Co., a firm, represented by its 4 partners, when any proceeding under Tamil Nadu Act No.18 of 1960 as amended cannot be instituted against a firm as C.P.C. has no application except for appointment of a Commissioner and Execution Proceedings (specifically provided for in the Act), as laid down in several decisions of this Hon’ble Court and the Supreme Court. Hence, the suit based on fair rent proceedings for recovery of different in fair rent and contract rent is not maintainable and is liable to be dismissed.” (extracted as such) (c) Whereupon the counter was filed by the plaintiff, challenging and impugning the right of the defendant in getting the written statement amended. After hearing both sides, the learned Master dismissed the said application. (d) Being aggrieved by and dissatisfied with such dismissal of the application, this appeal is focussed on various grounds inter alia thus: The learned Master, considered the merits of the very additional pleas taken in the proposed amendment, even though he was not expected to go into the merits of such pleas; after giving a categorical finding that application for amendment is not barred, nonetheless he simply based on his own evaluation of the merit of the pleas as contained in the proposed para Nos.10A and 10B, simply dismissed the application. Accordingly, the defendant prays for setting aside the order of the learned Master. 4. Accordingly, the defendant prays for setting aside the order of the learned Master. 4. The points for consideration are as to: (1) Whether the Application No.1752 of 2008 is in violation of the proviso appended to Order 6 Rule 17 of the Code of Civil Procedure? (2) Whether the learned Master was justified in going into the merits of the proposed And pleas while dismissing the application? Point No.1: 5. The learned counsel for the defendant would develop and put forth his arguments by citing various decisions of the Hon’ble Apex Court and this Court, to the effect that at the time of considering the application for amending the written statement, the Court is not expected to go into the merits of the pleas; nonetheless surprisingly and wrongly, in this case, the learned Master gave his verdict as though the pleas as contained in the proposed amendments, viz. para Nos.10A and 10B of the written statement are untenable on merits. 6. Whereas the learned counsel for the plaintiff by citing precedents of the Hon’ble Apex Court would set forth his arguments to the effect that even at the stage of considering the application for amendment, the tenability or maintainability of the pleas can be rightly considered, as frivolous pleas are not allowed to be incorporated by way of amendment in the written statement to the prejudice of the plaintiff. He would also by inviting the attention of this Court to the Proviso appended to Order 6 Rule 17 of the Code of Civil Procedure would submit that in this case, already trial has commenced and when the matter has been posted for cross examination of P.W.1, the defendant has filed this application for amendment of the written statement. 7. At this juncture, I would like to consider as to whether the Application No.1752 of 2008, falls foul of the proviso appended to Order 6 Rule 17 of C.P.C. Certainly, in this connection, the pith and marrow, the warp and woof, the gist and kernel of certain factual aspects have to be seen. Earlier, the plaintiff instituted the Rent control proceedings in R.C.O.P. No.154 of 2000 and as early as in the year 2002, as against the order in the RCOP, RCAs by the Court concerned enhancing the rent in favour of the landlord, i.e., the plaintiff herein, the landlord has chosen to file the suit C.S. No.526 of 2005. Earlier, the plaintiff instituted the Rent control proceedings in R.C.O.P. No.154 of 2000 and as early as in the year 2002, as against the order in the RCOP, RCAs by the Court concerned enhancing the rent in favour of the landlord, i.e., the plaintiff herein, the landlord has chosen to file the suit C.S. No.526 of 2005. The fact remains that even during the pendency of the suit C.R.P. Nos.1631 and 1632 of 2005 were filed by the tenant, i.e., the defendant herein and they were dismissed on 12. 2006 and thereafter, the tenant preferred SLP, but it was dismissed on 17. 2007 by the Hon’ble Apex Court. 8. At this juncture, it has to be seen that the period between the date of dismissal of the SLP on 17. 2007 and the date of filing of the application for amendment. i.e. Application No. 1752 of 2008 on 23. 2008, it comes to about 8 months and a half. This period inter alia gains much importance for deciding this matter. The nature of the pleas as found set out in the proposed amendments in para Nos. 10A and 10B are such that, if taken up, they amount to challenging the maintainability of the suit itself. 9. It is a trite proposition of law that the defendant at the earliest point of time should challenge the maintainability of the suit by taking appropriate pleas. In the instant case, the argument put forth by the learned counsel for the defendant is that only after the dismissal of the CRPs as well as the SLP, the defendant had the opportunity to put forth all those facts and raise his pleas by way of amendment to the written statement. I am of the view that even at the time of filing the original written statement itself, the defendant could have raised such pleas touching upon the fact that RCOP proceedings were initiated not as against the proper person so as to say, the partners of the partnership firm but only as against the partnership, which is not a person to be proceeded against as per the Tamil Nadu Buildings (Lease and Rent Control) Act. It is not as though this plea was available to the defendant only after the CRPs were decided or SLP was disposed of. It is not as though this plea was available to the defendant only after the CRPs were decided or SLP was disposed of. It is therefore, clear that the plea relating to maintainability of the suit is having nothing to do with the disposal of the SLP by the Hon’ble Apex Court or for that matter, the CRPs by the High Court earlier to it. 10. The decision of the Hon’ble Division Bench of this Court in C. Rajamani v. C. Rathnabai (2009) 3 MLJ 548 : 2009 (4) CTC 213 is cited by the learned counsel for the defendant is of no way in support of his plea. The judgment of the Division Bench is concerning the matrimonial proceedings and it is quite obvious that in matrimonial proceedings, the law relating to amendment is somewhat different from other proceedings. Doctrine of Merger: 11. In this factual matrix, it is just and necessary to consider the gamut and the scope of the proposed amendments to the written statement. In para No. 10(A), the defendant seeks to raise the plea that as on the date of filing of the suit by the plaintiff for recovery of enhanced rent, as per the judgment and decrees in R.C.A. Nos. 598 and 662 of 2002, finality had not been achieved as CRP was filed and that after the orders were passed in CRPs, as per the doctrine of merger, the judgment in RCA’s got merged. 12. It is therefore explicitly clear that as on the date of the filing of the written statement itself on 112. 2005 the defendant was aware of the fact that CRP was filed by him on 16. 2004 and that the plaintiff allegedly had no right, according to the defendant to file the suit on 16. 2005 even though the CRPs were admitted on 29. 2005 and in such a case, it is not known as to what prevented the defendant from raising such a plea in the written statement itself filed on 112. 2005 as to the maintainability of the suit. 13. 2005 even though the CRPs were admitted on 29. 2005 and in such a case, it is not known as to what prevented the defendant from raising such a plea in the written statement itself filed on 112. 2005 as to the maintainability of the suit. 13. Similarly, in the proposed para No.10B, the defendant seeks to raise the plea that the Rent Control Proceedings initiated as against V.N. Natesa Chettiar and Co., the firm represented by it four partners was not tenable and as per the Tamil Nadu Buildings (Lease & Rent Control) Act, 1955 RCOP cannot be indisputably, incontrovertibly and unarguably, clear that in the RCCP proceedings up to the Hon’ble Supreme Court, such a plea was not taken, This Court however, is not concerned with that point while dealing with the amendment application now but the fact remains that at the time of filing the written statement itself, the defendant ought to have raised such a plea that RCOP proceedings initiated as against the firm was not tenable. But, he has not chosen to do so. But, only after the commencement of trial, the defendant has chosen to come forward with certain pleas. It is not that the cause of action for the amendment sought to be incorporated under the proposed paras 10A and 10B, emerged during the pendency of the suit. But, those proposed pleas are all touching upon the maintainability of the suit, which were within the knowledge of the defendant, even as on the date of filing of the written statement in the suit. As such, in stricto sensu the delay and laches are not only from 17. 2007, the date of dismissal of the SLP by the Hon’ble Apex Court, till the filing of the application on 23. 2008 for amendment on 23. 2008 but the delay and laches are from the date of filing of the written statement itself on 112. 2005 till the filing of the application for amendment of the written statement but simply because in the proposed amendment, the dismissal of the RCA and the dismissal of the SLP, as against the defendant, are referred to, it would not amount to subsequent arisal of the cause of action for taking such pleas relating to maintainability in the proposed paras. 14. 14. A such, the decision of the Hon’ble Apex Court (2000) 6 SCC 359 relating to doctrine of merger in my opinion has been cited out of context in this case. 15. As such, I could see that there are laches on the part of the defendant in raising the plea relating to maintainability of the suit. Whatever be the circumstances, after disposal of the SLP or at least before the commencement of trial, the defendant could have very well raised the pleas as found set out in the proposed amendment viz., para Nos. 10A and 10B but, the defendant had not chosen to do so. 16. The learned counsel for the plaintiff is right in submitting his argument that by taking the plea relating to maintainability of the suit, after the commencement of trial, the plaintiff is very much prejudiced. In this connection, I would like to refer to the decision of the Hon’ble Apex Court in Vidyabai and Others v. Padmalatha and Another (2008) 4 TLNJ 588 (Civil) (in short Vidyabai and Others v. Padmalatha and Another (supra) case). Certain excerpts from it would run thus: “7. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order 6 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 therefore 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. From the order passed by the learned Trial Judge, it is evidence that the respondents had not been able to fulfil the said pre-condition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to ‘commencement of proceeding’. 9. Although in a different context, a Three-Judge Bench of this Court in Union of India and Others v. Major General Madal Lai Yadav (Retd) AIR 1996 SC 1340 : (1996) 4 SCC 127 took note of the dictionary meaning of the terms ‘trial’ and ‘commence’ to opine: 19. It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial. The High Court, as noticed hereinbefore, opined that filing of an affidavit itself would not mean that the trial has commenced. 10. Order 18, Rule 4(1) of the Code reads as under: “4. Recording of evidence (1) In every case, the examination-in-chief of a witness shall be no affidavit and copies thereof shall be supplied to the opposite party by the party who claim for evidence-Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.” 11. This aspect of the matter has been considered by this Court in Ameer Trading Corpn.Ltd. v. Shapoorji Data Processing Ltd. AIR 2004 SC 355 : (2004) 1 SCC 702 , in the following terms: “15. The examination of a witness would include evidence-in-chief, cross-examination or re-examination. Rule 4 Order 18 speaks of examination-in-chief. The unamended rule provided for the manner in which “evidence” is to be taken. Such examination-in-chief of a witness in every case shall be on affidavit. 16. The aforementioned provision has been made to curtail the time taken by the Court in examining a witness-in-chief. Rule 4 Order 18 speaks of examination-in-chief. The unamended rule provided for the manner in which “evidence” is to be taken. Such examination-in-chief of a witness in every case shall be on affidavit. 16. The aforementioned provision has been made to curtail the time taken by the Court in examining a witness-in-chief. Sub-rule (2) of Rule 4 of Order 18 of the Code of Civil Procedure provides for cross-examination and re-examination of a witness which shall be taken by the Court or the Commissioner appointed by it.” In Kailash v. Nanhku AIR 2005 SC 2441 : (2005) 4 SCC 480 , this Court held: “13. At this point the question arises: when does the trial of an election petition commence or what is the meaning to be assigned to the word trial in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. As held by this Court in several decided cases, this general rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings commencing with the presentation of the election petition and up to the date of decision therein are included within the meaning of the word ‘trial’. We may notice that in Ajendraprasadji N. Pandey and Another v. Swami Keshavprakeshdasji N. And Others (2006) 12 SCC 1 , this Court noticed the decision of this Court in Kailash v. Nanhku (supra) to hold: 35. By Act 46 of 1999, there was a sweeping amendment by which Rules 17 and 18 Were wholly omitted so that an amendment itself was not permissible, although sometimes effort was made to rely on Section 148 for extension of time for any purpose. 36. Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 17 by Act 22 of 2002 w.e.f. 7. 2002. It had a provision permitting amendment as described therein. 36. Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 17 by Act 22 of 2002 w.e.f. 7. 2002. It had a provision permitting amendment as described therein. But it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the Court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is this pro viso which falls for consideration.” The above extract would unambiguously and unequivocally, highlight and spotlight the fact that before the commencement of the trial, amendment of the written statement should be sought for and simply for the sake of having asked for amendment, it should not be allowed. The delay aspect as well as the prejudice, which the proposed amendment would cause to the plaintiff would also should be taken into consideration. In the aforesaid decision, the trial Court in fact, dismissed the application for amendment to the written statement as against which, the matter was taken up to the High Court, which reversed the order of the lower Court, but the Hon’ble Apex Court set aside the order of the High Court and upheld the order of the trial Court holding that the proviso appended to Order 6 Rule 17 of the Code of Civil Procedure was squarely an embargo to the facts and circumstances of that amendment. 17. I could see, much of a muchness between the facts involved in the cited case and this case. However, the learned counsel for the defendant would submit that the delay cannot be taken serious note of as in no way that would prejudice the plaintiff. 18. To the risk of repetition and pleonasm, but without being tautologous, I would like to point out that the pleas based on mixed question of law and fact relating to the maintainability of the suit should be taken at the earliest point of time, viz in the written statement itself filed by the defendant. But, in this case, de hors the disposal of the CRP and SLP, the defendant had the opportunity to raise the proposed pleas, as held by me supra. But, the defendant has not chosen to do so. But, in this case, de hors the disposal of the CRP and SLP, the defendant had the opportunity to raise the proposed pleas, as held by me supra. But, the defendant has not chosen to do so. Hence, I am of the view that the proviso appended to Order 6 Rule 17 of the Code of Civil Procedure is squarely an embargo as against the proposed amendment. 19. At this juncture, it is also just and necessary to point out that the decision of the Hon’ble Apex Court in Vidyabai and Others v. Padmalatha and Another (supra) case emerged on 112. 2008; whereas the decision of the Hon’ble Apex Court in Usha Devi v. Rijwan Ahmad and Others AIR 2008 SC 1147 : (2008) 3 SCC 717 : (2008) 3 MLJ 287, cited by the learned counsel for the defendant emerged on 11. 2008. An excerpt from it would run thus at p.291 of MLJ: “9. Mr. Bharuka also invited our attention to a three-Judge Bench decision of this Court in Sajjan Kumar v. Ram Kishan. In this decision too the proposed amendment related to correction of the description of the suit premises in the plaint The amendment was sought on the plea that the description of the property given in the rent note itself was incorrect and the same description was repeated in the plaint and there would be complications at the stage of execution to avoid which the description of the suit premises as given in the plaint needed to be corrected. Another similarity with the case in hand was that the prayer for amendment was opposed by the respondent-defendant on the principal ground that although the defendant had taken the plea in the written statement itself that the suit premises were not correctly described, yet the appellant-plaintiff proceeded with the trial of the suit and did not taken care to seek the amendment at an early stage. The trial Court rejected the prayer for amendment and the High Court dismissed the civil revision against the order of the trial Court. Allowing the prayer for amendment this Court in para 5 of the decision observed as follows: (Sajjan Kumar v. Ram Kishan (supra), SCC p.90) “5. The trial Court rejected the prayer for amendment and the High Court dismissed the civil revision against the order of the trial Court. Allowing the prayer for amendment this Court in para 5 of the decision observed as follows: (Sajjan Kumar v. Ram Kishan (supra), SCC p.90) “5. Having heard the learned counsel for the parties, we are satisfied that the appeal deserves to be allowed as the trial Court, while rejecting the prayer for amendment has failed to exercise the jurisdiction vested in it by law and by the failure to so exercise it, has occasioned a possible failure of justice. Such an error committed by the trial Court was liable to be corrected by the High Court in exercise of its supervisory jurisdiction, even if Section 115 C.P.C would not have been strictly applicable. It is true that the plaintiff-appellant ought to have been diligent in promptly seeking the amendment in the plaint at an early stage of the suit more so when the error on the part of the plaintiff was pointed out by the defendant in the written statement itself. Still, we are of the opinion that the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of the execution in the event of the plaintiff-appellant succeeding in the suit.” (emphasis supplied) 10. In view of the decision in Sajjan Kumar v. Ram Kishan (supra) we are of the view that this appeal too deserves to be allowed. We may clarify here that in this order we do not venture to make any pronouncement on the larger issue as to the stage that would mark the commencement of trial of a suit but we simply find that the appeal in hand is closer on facts to the decision in Sajjan Kumar v. Ram Kishan (supra) and following that decision the prayer for amendment in the present appeal should also be allowed. 11. 11. As to the submission made on behalf of the respondents that the amendment will render the suit non-maintainable because it would not only materially change the suit property but also change the cause of action it has only to be pointed out that in order to allow the prayer for amendment the merit of the amendment is hardly a relevant consideration and it will be open to the respondent-defendants to raise their objection in regard to the amended plaint by making any corresponding amendments in their written statement. 12. The counsel for the respondents also submitted that as a result of the description of the suit property in the plaint the respondent-defendants had to suffer injunction against their own property. We feel that the ends of justice would meet by allowing the proposed amendment subject to a cost of Rs. 10,000/-.” Placing reliance on the said Usha Devi v. Rijwan Ahmad and Others (supra) case, the learned counsel for the defendant would submit that amendment of the pleadings should be allowed, if the Court comes to the conclusion that the controversy between the parties in a suit could be finally adjudicated in a better manner based on such amendments. 20. According to the learned counsel for the defendant, the pleas raised by the defendant by way of proposed amendment are absolutely necessary to decide the actual dispute between the parties and as such the defendants’ plea cannot be throttled at this stage. No doubt, the said judgment relied on by the learned counsel for the defendant would highlight that in order to decide the real controversy, if any amendment is required, certainly that should be entertained. The facts involved in that case were to the effect that the plaintiff wanted to get the plaint amended and in such circumstances, the Hon’ble Apex Court felt that even if the plaintiff succeeds before the trial Court, with such amendment, it would be open for the defendant to litigate further and file applications at he stage of execution creating complications. But, here, as has been observed by me supra the pleas based on mixed question of law and fact are such as to the maintainability of the suit, which the defendant could have very well raised even at the time of filing the written statement, itself. But, he has not chosen to raise them. But, here, as has been observed by me supra the pleas based on mixed question of law and fact are such as to the maintainability of the suit, which the defendant could have very well raised even at the time of filing the written statement, itself. But, he has not chosen to raise them. Hence, I am of the view that the latest Supreme Court Judgment in Vidyabai and Others v. Pqadmalatha and Another (supra) case is squarely applicable in this factual matrix and in the facts and circumstances of this case. 21. The learned counsel for the defendant also cited one other decision of the Hon’ble Apex Court in Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others (2006) 4 SCC 385 : (2006) 3 MLJ 70. An excerpt from it would run thus at p. 75 of MLJ: “15. This rule declares that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The proviso enacts that no application for amendment should 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 for which amendment is sought before the commencement of the trial. 16. The object of the rule is that the Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 18. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. 18. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.” A plain perusal of the extracts and poring over of the entire judgment would highlight that if any cause of action arise during the pendency of the suit, the proposed amendment should be allowed. Here, it is quite obvious that the pleas relating to non-maintainability of the suit could have been raised even at the time of filing the written statement itself. As such, the defendants cannot press into service the decision cited supra in the facts and circumstances of this case. 22. a perusal of the order passed by the learned Master would reveal that he placed reliance on the judgment of the Hon’ble Apex Court in the decision in Baldev Singh and Others v. Manohar Singh and Another (2006) 6 SCC 498 : (2007) 7 MLJ 838. But, in the subsequent Apex Court’s judgment, i.e., in Vidyabai and Others v. Padmalatha and Another (supra) case, the said judgment has been distinguished and highlighted that after the commencement of trial as in this case, while dealing with the application for amendment to written statement, the Court should necessarily consider the ingredients of the proviso appended to Order 6 Rule 17 C.P.C. Accordingly, the Apex Court dismissed the prayer for amendment of the written statement. 23. The learned counsel for the plaintiff also cited the decision of the Hon’ble Apex Court in Rajkumar Gurawara (deal) through Lrs. v. S.K. Sarwagi & Co.Pvt.Ltd. and Another (2008) 8 MLJ 307: 2008 (5) CTC 253 and that judgment is earlier to Vidyabai and Others v. Padmalatha and Another (supra) case and no doubt, that judgment also supports the plaintiffs contention. 24. Accordingly, I am of the considered view that the Point No.1 has to be decided to the effect that the Application No.1752 of 2008 falls foul of the proviso appended to Order 6 Rule 17 C.P.C and accordingly, the Application No.1752 of 2008 is liable to be dismissed. 24. Accordingly, I am of the considered view that the Point No.1 has to be decided to the effect that the Application No.1752 of 2008 falls foul of the proviso appended to Order 6 Rule 17 C.P.C and accordingly, the Application No.1752 of 2008 is liable to be dismissed. Point No.2: 25. Regarding Point No.2 is concerned the learned counsel for the defendant appropriately and appositely, correctly and convincingly has pointed out that the learned Master was not justified in delving deep into the pleas raised in the proposed para Nos.10A and 10B of the written statement and holding that the pleas are not tenable. In support of his argument, he cited the decision of the Hon’ble Apex Court in Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others (supra). An excerpt from it would run thus at p.76 of MLJ: “19. ………..On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinions and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. It is settled by a catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. 20. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case.” However, the learned counsel for the plaintiff by citing the following decisions: 1. Govindaswamy & Co. v. Basheer by PA. (1982) TLNJ 11 2. Ramakrishna and Bros., a partnership firm through one of its partners, M. Paramasivam and Others v. T.P.N. Manickavalli (1989) 1 MLJ 404 3. Govindaswamy & Co. v. Basheer by PA. (1982) TLNJ 11 2. Ramakrishna and Bros., a partnership firm through one of its partners, M. Paramasivam and Others v. T.P.N. Manickavalli (1989) 1 MLJ 404 3. Mariastella and Others v. Rajarajan and Another (1994) 1 MLJ 6623 4. Calcutta Chemicals and Limited v. Taiyeb Yusufbhai Vakharia and Another 1999 (3) CTC 202 5. P. Subba Naicker v. Veluchamy Naicker and three Others 2004 (2) CTC 742 6. N. Chandramohan v. K. Ram Mohan (2005) 3 LW.63 7. V.M. Natesa Chettiar & Co. rep.by its partners v. V. Padmanaba Davey (2007) 3 LW.229 would submit that if the proposed pleas are ex facie and prima facie untenable and against law or barred by law, even at the time of considering the application for amendment, the same could be taken. I would like to disagree with such a view. 26. The learned counsel for the defendant would submit that the aforesaid decisions would highlight that even in the course of the same RCOP proceedings, at a belated stage of the proceedings, the tenant cannot plead that RCOP proceedings initiated as against the firm is not tenable. 27. In view of the decision of the Hon’ble Apex Court at the time of considering the proposed amendment, the merit of the case need not be considered and no more elaboration is required in this regard. So far this case is concerned, when at the time of considering the application for amendment, Court is not expected to have a broad based rowing enquiry into the pros and cons of the pleas based on fact and law. 28. the learned Master without considering this cardinal point, simply referred to certain other decisions and held on merits that the proposed pleas were not tenable and at the stage of considering the application, the merit or otherwise of the application in view of the Hon’ble Apex Court verdict need not be considered. 29. Accordingly, Point No.2 is decided to the effect that the learned Master was not justified in going into the merits of the proposed pleas. However, in view of the fact that the very Application No.1752 of 2008 for amendment falls foul of the proviso appended to Order 6 Rule 17 of C.P.C, the application was rightly dismissed by the learned Master and accordingly, the appeal filed as against such an order is not tenable. 30. However, in view of the fact that the very Application No.1752 of 2008 for amendment falls foul of the proviso appended to Order 6 Rule 17 of C.P.C, the application was rightly dismissed by the learned Master and accordingly, the appeal filed as against such an order is not tenable. 30. Accordingly, the appeal is dismissed. No costs. Consequently, the connected application is closed. Application dismissed.