ORDER Shantanu Kemkar, J. 1. By this petition, under Article 227 of the Constitution of India, the Petitioner (Defendant No. 1) has challenged the order dated 31-10-2007 passed by 1st Civil Judge, Class I, Neemuch in Civil Suit No. 74-A of 2005, by which the Plaintiff's applications filed under Order I Rule 10 and under Order 6 Rule 17 of the Code of Civil Procedure (for short Code of Civil Procedure) have been allowed. 2. Briefly stated, the Plaintiffs (Respondent Nos. 1 and 2 herein) have filed a Civil Suit on 6-9-2005 against the Petitioner as also against the Respondent Nos. 3 and 4 (Plaintiffs' father and mother) and 9 (State Government) seeking declaration of partition and permanent injunction in respect to the agricultural land. It was alleged that the said land being ancestral property of their family, which fell in their share as per the family arrangement carried out 5-7 years back, the Respondent Nos. 3 and 4, could not have sold the same to the Petitioner (Defendant No. 1). 3. The Petitioner who had purchased the said land from the Defendant Nos. 2 and 3 by way of a registered sale deed executed on 4-7-2005 for consideration of Rs. 3.24 lakhs filed written statement alongwith a counter claim seeking permanent injunction that the Plaintiffs and the Defendants Nos. 2 and 3 from whom she had purchased the land, be restrained from interfering into her possession. A specific plea was raised by the Petitioner that since the Plaintiffs have failed to join their sister Rekha Bai in the suit, the suit suffers from non-joinder of necessary parties. 4. On the basis of the pleadings raised by the parties, the Trial Court framed various issues. On the basis of Petitioner's objection in the special pleadings an additional issue was framed on 16-2-2006 as to whether suit suffers from non-joinder of necessary parties ? The said additional issue was decided as a preliminary issue by the Trial Court vide order dated 2-3-2006 in favour of the Plaintiffs by holding that the Plaintiffs' sister Rekha Bai is not necessary party. 5. Thereafter the Plaintiffs led their evidence. On completion of the Plaintiffs' evidence, the Defendant Nos. 2 and 3 submitted their evidence on affidavit as examination-in-chief. At that stage, the aforesaid two applications were filed by the Plaintiffs. 5. Thereafter the Plaintiffs led their evidence. On completion of the Plaintiffs' evidence, the Defendant Nos. 2 and 3 submitted their evidence on affidavit as examination-in-chief. At that stage, the aforesaid two applications were filed by the Plaintiffs. In the application under Order I Rule 10 of Code of Civil Procedure, the Plaintiffs prayed for adding their uncles and sisters including Rekha Bai as Defendants to the suit. In the application under Order 6 Rule 17 of Code of Civil Procedure, a prayer was made by the Plaintiffs to amend the plaint so as to make averment and include the relief to the extent that mutation and the partition effected on 15-3-2002 and 10-6-2002 respectively by their father and his brothers (Plaintiffs' uncles) without notice to the Plaintiffs, be declared to be null and void. 6. The Petitioner submitted reply to the aforesaid applications and objected the same. The Trial Court, vide impugned order dated 31-10-2007, allowed both the applications. Feeling aggrieved, the Petitioner (Defendant No. 1), has filed this writ petition. 7. Shri Sameer Athawale, Learned Counsel for the Petitioner argued that on the specific plea being raised by the Petitioner in her written statement that the suit filed by the Plaintiffs suffers from the defect of non-joinder of necessary parties as the Plaintiffs have not joined their sister in the suit, the Trial Court had framed an additional issue on 16-2-2006 to the effect "whether the suit suffers from non-joinder of necessary parties". The said issue having decided by the Trial Court in favour of the Plaintiffs vide order dated 2-3-2006 holding that the Plaintiffs' sister is not the necessary party, it has committed error in allowing the prayer for joining the same Rekha Bai and others as party contrary to its own decision on the said issue. According to him, by allowing of said prayer the Trial Court has reviewed its own order which is not permissible. As regards the order regarding the allowing of the Plaintiff's application under Order 6 Rule 17 of the Code of Civil Procedure, he argued that since the trial of the suit had already commenced, the Trial Court could not have allowed the application without recording a finding that in spite of due diligence the Plaintiffs could not have raised the matter before the commencement of trial. In support he referred Proviso to Rule 17 of Order 6, Code of Civil Procedure and placed reliance on the judgment passed by the Supreme Court in the case of Vidyabai and Ors. v. Padmalatha and Anr., (2009) 2 SCC 409 : AIR 2009 SC 1433 , as also in the case of Sushil Kumar Jain v. Manoj Kumar and Anr. (2009) 14 SCC 38 . 8. Shri Anwar Khan, Learned Counsel for the Plaintiffs-Respondent Nos. 1 and 2, on the other hand, supported the impugned order passed by the Trial Court. He argued that the application under Order 1 Rule 10 of Code of Civil Procedure has rightly been allowed by the Trial Court in view of the fact that the parties to whom the Plaintiffs want to join as Defendants are necessary parties for the effective adjudication of the suit. He also supported the order of the Trial Court allowing the application under Order 6 Rule 17 of Code of Civil Procedure, by contending that the proposed amendment will not change the nature of the suit. The amendment being necessary for the purpose of determining the real questions in controversy, has rightly been allowed by the Trial Court. He also argued that the amendment can even be allowed at the appellate stage. In support, he placed reliance on the judgments passed by the Supreme Court in the cases of M.C. Agrawal HUF v. Sahara India and Ors. AIR 2008 SC 4763, North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (D) by L. Rs. AIR 2008 SC 3159 and Rajesh Kumar Aggrawal and Ors. v. K.K. Modi and Ors., (2006) 4 SCC 385 - AIR 2006 SC 1647 . 9. AIR 2008 SC 4763, North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (D) by L. Rs. AIR 2008 SC 3159 and Rajesh Kumar Aggrawal and Ors. v. K.K. Modi and Ors., (2006) 4 SCC 385 - AIR 2006 SC 1647 . 9. So far as the validity of the impugned order passed by the Trial Court in respect of allowing the Plaintiff's application under Order 1 Rule 10 of Code of Civil Procedure we find that the ground raised by the Petitioner in her reply (Annexure P-5) to the Plaintiffs' application, raising an objection that the issue about non-joinder of necessary party which was framed on the basis of the objection raised by the Petitioner in her written statement was decided by the Trial Court vide order dated 2-3-2006 in favour of the Plaintiffs holding that Rekha Bai sister of the Plaintiffs is not necessary party and therefore, the prayer could not be allowed as it would be contrary to the decision on the said issue, has not been dealt with by the Trial Court. Thus, we are of the view that the order of the Trial Court allowing the Plaintiffs' application under Order 1 Rule 10 of the Code of Civil Procedure without considering the effect of its earlier order dated 2-3-2006 deciding the preliminary issue, cannot be sustained. The Trial Court was expected to have considered the effect of its earlier order while passing the order allowing the said application. 10. Coming to the question about the decision of the Trial Court on the application under Order 6 Rule 17 of Code of Civil Procedure, admittedly the said application was filed after commencement of the trial. Order 6 Rule 17 of Code of Civil Procedure, as amended w.e.f. 1-7-2002, read thus: 17. 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 in spite of due diligence, the party could not have raised the matter before the commencement of trial. 11. 11. The Supreme Court in the case of Vidyabai and Ors. v. Padmalatha and Anr. (supra), had an occasion to interpret Proviso to Order 6 Rule 17. After taking into consideration the law laid down by it in the case of Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344 , Ajendra Prasadji N. Pandey v. Swami Keshav Prasadji (2006) 12 SCC 1 , it held that the Proviso is couched in 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. It has been further held that no application for amendment shall be allowed after the trial has commenced, unless the requirement of the Proviso is satisfied. It is the primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such condition is fulfilled, the amendment is to be allowed. However, unless the jurisdictional fact, as envisaged in the Proviso is found to be existing and unless the Court is satisfied that in spite of due diligence the party could not have raised the matter before commencement of trial, the Court will not have jurisdiction at all to allow the amendment. 12. In the case of Sushil Kumar Jain v. Manoj Kumar and Anr. 12. In the case of Sushil Kumar Jain v. Manoj Kumar and Anr. (supra), the Supreme Court keeping in view the well settled law that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle since adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action and the Courts would be more liberal in allowing amendment of written statement than that of a plaint as the question of prejudice would be far less in the former than in the latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed and the admitted fact that not even the issues have yet been framed, documents have not yet been filed, evidence has not yet been adduced held that the proviso to Order 6 Rule 17 of Code of Civil Procedure has no manner of application as the trial has not yet commenced. 13. In the case of M.C. Agrawal HUF v. Sahara India and Ors. (supra), relied upon by the Learned Counsel for the Respondents, the question relating to Proviso of Order 6 Rule 17, Code of Civil Procedure was not into consideration. In the case of North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (D) by L.Rs. (supra), the Supreme Court was considering the principles which govern the question of granting and disallowing the amendment under Order 6 Rule 17, Code of Civil Procedure prior to its amendment by Act 22 of 2002. In the case of Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. (supra), the Supreme Court has held that the Court should allow the amendments that would be necessary to determine the real question of the controversy between the parties, the same undisputedly would be subject to the condition that no prejudice is caused to other side. However, in the case of Vidyabai and Ors. v. Padmalatha and Anr. (supra), the Supreme Court has held that the Court should allow the amendments that would be necessary to determine the real question of the controversy between the parties, the same undisputedly would be subject to the condition that no prejudice is caused to other side. However, in the case of Vidyabai and Ors. v. Padmalatha and Anr. (supra), the Supreme Court after considering the judgment passed by it in the case of Rakesh Kumar Aggarwal (supra), has held that the Court has to decide as to whether the amendment is necessary to decide the real dispute between the parties and only if such condition is fulfilled, the amendment is to be allowed. It was further observed that however it puts an embargo on exercise of its jurisdiction. The Courts 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. 14. Having regard to the pronouncement of the Supreme Court in the case of Vidyabai and Ors. v. Padmalatha and Anr. (supra), as also in the case of Sushil Kumar Jain v. Manoj Kumar and Anr. (supra), it is clear that no application for amendment can be allowed after the trial has commenced unless the Court has come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. Once the trial is commenced the proviso of Order 6 Rule 17, Code of Civil Procedure gets attracted. 15. In the present case, as stated above trial had already commenced. On going through the impugned order we find that the Trial Court had not recorded any finding to the effect that in spite of due diligent the Plaintiffs could not raise the said pleadings before the commencement of trial. In the circumstances in our view the impugned order being passed without giving any finding about the requirement of proviso of Order 6 Rule 17 of the Code of Civil Procedure the same is liable to be quashed. 16. In the circumstances for the reasons stated above, the impugned order relating to both the applications is hereby quashed. In the circumstances in our view the impugned order being passed without giving any finding about the requirement of proviso of Order 6 Rule 17 of the Code of Civil Procedure the same is liable to be quashed. 16. In the circumstances for the reasons stated above, the impugned order relating to both the applications is hereby quashed. The Trial Court is directed to re-decide both the applications afresh on merits keeping in view its earlier order dated 2-3-2006 and also keeping in view the Proviso to Order 6 Rule 17 of Code of Civil Procedure. 17. As a result, the petition is allowed to the extent indicated above. Parties to bear their own costs.