JUDGMENT L.N. Mittal, J.(Oral):- By this common order, I shall dispose of two Civil Revision Petitions i.e. C.R.No.1753 of 2009 and C.R.No.1754 of 2009, as both these revision petitions have been preferred by the plaintiff against same impugned order dated 3.3.2009 of learned trial Court. 2. The petitioner filed suit for specific performance of agreement to sell the suit property. It was inter alia pleaded in the plaint that a meeting had taken place on 5.3.2007 in which the defendant/respondent No.1 Dhanraj Singh demanded additional amount. The plaintiff moved application Annexure P-1 (in C.R.No.1753 of 2009) for directing, defendant No.1 to give his specimen voice and to get the same compared with conversation recorded on 5.3.2007 in audio compact disc (in short-CD) by sending the same to Central Forensic Science Laboratory (in short- CFSL), Chandigarh. The said application was dismissed by the trial Court vide order dated 1.4.2008 (Annexure P-3). The plaintiff preferred C.R. No.2159 of 2008 to assail the said order. However, the said civil revision was dismissed by this Court vide order dated 16.9.2008 (Annexure P-4) inter alia observing that the CD was not originally recorded but was prepared from tape recorded version and since the original tape recorded version was not before the Court, comparison with CD could not be allowed. The plaintiff preferred Petition, for Special Leave to Appeal No.26014 of 2008, in Hon’ble Apex Court wherein following order dated 25.11.2008 (Annexure P-5) was passed by the Hon’ble Supreme Court: “Learned counsel for the petitioner seeks leave to withdraw this petition reserving liberty to produce the original Digital Recorder before the trial Court in accordance with law. The special Leave petition is dismissed accordingly.” Pursuant to the aforesaid order of the Hon’ble Supreme Court, the plaintiff moved three applications in the trial Court. Vide first application, the plaintiff sought to keep the original digital recorder in the Court in sealed parcel. The said application was allowed by the trial Court vide impugned order dated 3.3.2009. In the second application, the plaintiff prayed for permission to place on record the original digital recorder. This part of the second application has also been allowed by the trial Court vide impugned order. The said application was allowed by the trial Court vide impugned order dated 3.3.2009. In the second application, the plaintiff prayed for permission to place on record the original digital recorder. This part of the second application has also been allowed by the trial Court vide impugned order. However, there was also additional prayer in the second application for directing respondent No.1 to give his specimen voice for sending the same to CFSL for comparison with original voice in the digital recorder as well as in the C.D. This part of the prayer in the second application has been disallowed by the learned trial Court by impugned order and the same is under challenge in C.R.No. 1753 of 2009. By third application, the plaintiff sought amendment of plaint to plead that the conversation of meeting dated 5.3.2007 had been recorded. The said application has been dismissed by trial Court vide impugned order and the same is under challenge in C.R. No. 1754 of 2009. 3. I have heard learned counsel for the parties at considerable length and perused the case files. 4. Insofar as C.R. No.1753 of 2009 is concerned, learned counsel for the petitioner vehemently contended that earlier prayer made by the petitioner for similar relief was declined because the original digital recorder from which the CD had been prepared was not placed before the trial Court, but now the same has been placed before the trial Court and the specimen voice of defendant No.1 can be compared with the original digital recorder as well as the CD prepared from the digital recorder and this type of evidence is admissible. Reliance in support of the contention has been placed on a judgment of the Bombay High Court in Central Bureau of Investigation Vs. Abdul Karim Ladsab Telgi and Ors. 2005(4) RCR (Criminal) 258 and also a judgment of Madras High Court in Dinesh Dalmia v. State 2006 Criminal Law Journal 2401. It was also pointed out that conversation of the meeting dated 5.3.2007 was specifically pleaded in the plaint although its recording was not pleaded, but even recording of the said conversation was pleaded in the replication to which also a rejoinder was filed by the defendants. 5. On the other hand, learned counsel for the respondents vehemently contended that there is no pleading in the plaint regarding recording of conversation of the alleged meeting. 5. On the other hand, learned counsel for the respondents vehemently contended that there is no pleading in the plaint regarding recording of conversation of the alleged meeting. It was also argued that the plaintiff closed its evidence on 8.1.2008 and, therefore, the plaintiff cannot be allowed to lead the proposed evidence now. It was also pointed out that Avtar Singh Sachdeva (PW-6) stated that he had not seen defendant No.1 Dhanraj Singh after 5.3.2006 and therefore, there could be no meeting or conversation on 5.3.2007. Reference was also made to the size of the recording instrument stated by Rupinder Singh Arora. The recording was done by Avtar Singh Sachdeva and CD from the recording was prepared by Rupinder Singh Arora. 6. I have carefully considered the rival contentions. 7. Insofar as closing of evidence by the plaintiff on 8.1.2008 and permitting proposed evidence thereafter now is concerned, the prayer cannot be rejected on this ground because the plaintiff had moved the first application Annexure P-1 even before the commencement of plaintiff’s evidence. However, the said application remained pending and was ultimately dismissed on 1.4.2008. Since plaintiffs prayer for comparison of the voice was already pending adjudication before the trial Court, when the plaintiff closed its evidence on 8.1.2008, it cannot be said that permitting the said comparison of voice at this stage would amount to re-opening of the evidence by the plaintiff. 8. Insofar as the size of the recording instrument is concerned, the evidence has to be evaluated by the trial Court at the time of final decision of the suit and no opinion can be expressed at this stage. Insofar as the statement by Avtar Singh Sachdeva that he had not met Dhanraj Singh after 5.3.2006 is concerned, the contention of learned counsel for the petitioner that it was a clerical error and in fact Avtar Singh Sachdeva meant to say that he had not met defendant no.1 after 5.3.2007, is also to be evaluated by the trial Court at the time of final decision of the suit. The prayer in the application of the plaintiff could not have been declined on this ground. 9. The prayer in the application of the plaintiff could not have been declined on this ground. 9. Insofar as the absence of pleading in the plaintiff is concerned, the same also cannot be given any undue importance, at this stage inasmuch as the meeting had taken place on 5.3.2007 and also conversation therein has been pleaded in the plaint and recording of the said conversation was also pleaded in the replication to which the defendants have even filed a rejoinder. 10. Learned counsel for the respondents also contended that the version of digital recorder has been introduced later on and originally it was tape recorder. However, a common man may not be able to distinguish between a tape recorder and digital recorder. Learned counsel for the petitioner pointed out that there is chip in the digital recorder containing the recording of the conversation and from the said chip, CD has been prepared. 11. Learned counsel for the respondents also contended that plaintiff’s earlier application for similar relief having been disallowed vide order dated 1.4.2008, as upheld upto Hon’ble Apex Court, the same relief cannot be granted now. The contention, although attractive, is without substance because in Civil Revision No C.R.No.2159 of 2008, it was observed that the original voice had not been placed on record and therefore, comparison with the CD which was not the original recording could not be allowed. However, this ground for denying the relief no longer exists because the digital recording containing original voice in the chip has since been produced in the trial Court. 12. Keeping in view all the circumstances, in the interest of justice, the prayer of the petitioner-plaintiff in Civil Revision No.1753 of 2009 has to be allowed and is accordingly allowed. The trial Court is directed to get specimen voice of defendant No.1 and to get the same compared with original digital recorder as well as CD Ex.P-26, at the expense of the plaintiff/petitioner. 13. Insofar as the Civil Revision No.1754 of 2009 is concerned, the same has to be dismissed because amendment of the plaint was sought long after the commencement of the trial. 13. Insofar as the Civil Revision No.1754 of 2009 is concerned, the same has to be dismissed because amendment of the plaint was sought long after the commencement of the trial. Proviso added to Rule 17 of Order VI of the Code of Civil Procedure ( in short - CPC) by Amendment Act No.22 of 2002 lays down that no application for amendment shall be allowed after 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. In the instant case, that application for amendment of plaint was moved much after the trial had commenced and, ­therefore, the same could not be allowed. It cannot be said that the plaintiff could not have sought amendment of the plaint to this effect before commencement of trial in spite of due diligence because the plaintiff took this plea in the replication and, therefore, the plaintiff with due diligence could seek amendment of plaint at that stage. The Hon’ble Supreme Court in Vidyabai & Ors vs. Padmalatha & anr. 2009 (1) RCR (Civil) 763 has categorically laid down as under: “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.” Thus, by the aforesaid proviso even jurisdiction of the trial Court to allow amendment in the situation mentioned therein is ousted. The trial Court, therefore, rightly declined the prayer for amendment of the plaint. Learned counsel for the petitioner also placed reliance on Pragat Singh Vs. Ranjit Singh, 2009(1) RCR (Civil) 555, South Konkan Distilleries and Anr. vs. Prabhakar Gajanan Naik and Ors. 2008(4) RCR (Civil) 513, Shiv Dutt and others vs. Dharambir and others, 2008(1) RCR (Civil) 479 and North Eastern Railway Administration, Gorakhpur vs. Bhagwan Das (D) By Lrs. 2008(3) RCR (Civil) 165. However, these judgments do not refer to the proviso inserted by Amendment Act.No.22 of 2002 and are therefore, not relevant to the issue involved in the instant revision petition. In view of the aforesaid, civil revision petition No.1754 of 2009 is dismissed. ------------------