ORDER I have heard learned counsel for the petitioner and the respondent nos.1 and 2. None has appeared on behalf of respondent no.3. 2. The petitioner is aggrieved by the order dated 26.11.2010 passed by the Additional District Judge, F.T.C.-3, Darbhanga in Title Appeal No.70 of 1996 by which the amendment sought in the plaint of the Title Suit No.35 of 1994 by inserting boundary of the lands described in Schedules 1 and 2, has been rejected. Short facts of this case which would be necessary for consideration of the matter are enumerated as under. The petitioner instituted Title Suit No.35 of 1994 against the respondents for following reliefs : “1. That the court be pleased to pass a decree for declaration of title of the plaintiff over the suit land. 2. That the court be pleased to hold and declare that the two kebalas dated 12.11.1993 in favour of defendant no.1 and 2 are fraudulent piece of documents, collusive, sham and colorable transaction and voidable one and also without consideration and the defendants did not deprive any title by virtue of the same. 3. That the court be pleased to hold and declare that the possession of defendant no.1 over Schedule-1 land is that of a trespasser and pass a decree for recovery of possession in favour of the plaintiff. 4. That the court be pleased to hold and declare that the plaintiff has been coming in possession of the suit land described in Schedule-2 of the plaint and confirm the same and if the plaintiff be dispossessed during the pendency of the suit then in that case a decree for recovery of possession be passed with respect to the same. 5. That the court be pleased to pass a decree for permanent injunction restraining the defendants from demolishing the building standing over Schedule-I land and make any remodeling or disturb the possession of the plaintiff in anyway. 6. That the court be pleased to pass a decree for costs.” 5. In Schedules 1 and 2, the Touzi No., Khata No., Plot No. and the dimension of the suit land from North to South and East to West have been described but the boundaries of lands concerned were not given. The suit was dismissed. 6. That the court be pleased to pass a decree for costs.” 5. In Schedules 1 and 2, the Touzi No., Khata No., Plot No. and the dimension of the suit land from North to South and East to West have been described but the boundaries of lands concerned were not given. The suit was dismissed. The petitioner preferred Title Appeal No.70 of 1996 against the decree which was pending before the court below when a petition was filed under Order-VI Rule XVII and Section 151 of the Code of Civil Procedure for allowing insertion of the boundaries of the lands in the Schedules 1 and 2 of the plaint. It was submitted before the court below that the aforesaid fact could not be detected by the plaintiff-appellant till the hearing of the title appeal commenced. The court below has rejected the prayer on the ground that the amendment sought appears to be mala fide as the same has been made at a belated stage at the time of hearing of the appeal concerned. 6. Learned counsel appearing on behalf of the petitioner has submitted that it would be apparent from the plaint, which has been appended as Annexure-3, that statements have been made regarding the lands described in Schedules 1 and 2 having been fraudulently claimed by the respondents-defendants through two sham sale deeds dated 12.11.1993. The plot numbers and area etc. of the lands have been disclosed in Schedules 1 and 2 that are part of the adjacent and amalgamated Plot No.1431 and 1432. It has been submitted that when all the details of the lands have been disclosed, no purpose could have been served by the plaintiff by hiding the boundary of the land as even the extent and dimension of land stands disclosed. For example, in Schedule-1, it has been stated that the land from North to South is 55 „Kari? whereas from East to West it is 100 „Kari?. Similarly, in Schedule-2, that has been disclosed to be as 35 „Kari? from North to South and from East to West that is 125 „Kari?. One of the relief sought is that the possession of the defendant no.1 over Schedule-1 land be declared as a trespasser and a decree for recovery of possession in favour of the plaintiff be passed. Similarly, in Schedule-2, that has been disclosed to be as 35 „Kari? from North to South and from East to West that is 125 „Kari?. One of the relief sought is that the possession of the defendant no.1 over Schedule-1 land be declared as a trespasser and a decree for recovery of possession in favour of the plaintiff be passed. For Schedule-2 properties, a declaration of plaintiff?s possession has been sought and in case the plaintiff came to be dispossessed during the pendency of the suit then a decree of restoration of possession has also been sought. Declaration of title of the plaintiff over the land in dispute is also one of reliefs disclosed in the plaint. 7. Learned counsel has contended that there could be no malafide intention of the plaintiff in hiding the boundary of the concerned land as he has already sought a relief for declaring the concerned sale deeds to be invalid, sham and collusive transaction which also bears the description of land and dimension of land and that has also been described in the schedules as has been stated above. However, difficulty may arise in identification of the lands in the absence of boundary in case a decree of recovery of possession in favour of the plaintiff-petitioner is passed by the appellate court and that is put to execution. It has further been submitted that existence of the sale deeds is admitted by the parties. The defendant defends the transactions whereas the plaintiff seeks invalidation of the documents on those being sham, collusive and colorable transaction. It is urged that incorporation of boundary will neither change the nature of the suit nor is any fresh relief being introduced by the plaintiff-petitioner, thus, it will not put the defendants to any irreparable loss. It is also contended that by incorporation of boundary the plaintiff would not be making a departure from his earlier case. Further contention is that the proposed amendment being of petty and trivial nature and being sought only for protecting the plaintiff from a technical difficulty which may arise during the course of execution of the decree if the same is passed in his favour that should be allowed keeping in view that it would be necessary for final adjudication of the lis. 8. 8. Learned counsel has placed reliance upon certain judicial pronouncements in support of his contention which would be considered later on. 9. Per contra learned counsel appearing for the defendants-respondents-respondents no.1 and 2 has vehemently opposed the proposed amendment. It has been submitted that the boundaries of the lands are well know to the petitioner but deliberately those were not incorporated in the schedules of the plaint. Suit was dismissed and even the appeal was at the verge of being disposed of, as the hearing has already commenced, when, at such a belated stage, an endeavour was made to get the amendment incorporated in the plaint only with a malafide intention to delay the matter and harass the defendants. 10. That apart, learned counsel has also raised a legal issue that the amended provisions specially the proviso to the Order VI Rule-17 which has been brought by way of substituting the earlier provisions vide the Code of Civil Procedure (Amendment) Act,2002 with effect form 1.7.2002, mandates that no application for amendment shall be allowed after commencement of trial unless the court comes to the conclusion that in spite of due diligence the party concerned could not have raised the matter earlier. Learned counsel has contended that in no manner the petitioner would be able to demonstrate that despite due diligence he could not have sought such amendment before the commencement of trial despite due diligence as everything including the boundary must have been known to him if he claims to be the title holder of the owner of the property concerned. 11. Before coming to other issues, the aforesaid issue requires to be dealt with at first instance because if it is held that at the appellate stage no amendment of plaint should be allowed unless the court comes to the conclusion that the plaintiff could not raise this matter before the commencement of trial despite due diligence, in such case, this application would fail and other issues would not be required to be dealt with. 12. In support of the aforesaid submission, learned counsel for the respondents has placed reliance upon a decision of this Court rendered in Shree Chandeshwari Kalui Vs. State of Bihar and another reported in 2006(4) PLJR 75 as well as another decision reported in the same journal at page-260 (Sayed Hasibuddin Vs. Syed Md. Akram Hussian and others), 2006(4) PLJR 260 . State of Bihar and another reported in 2006(4) PLJR 75 as well as another decision reported in the same journal at page-260 (Sayed Hasibuddin Vs. Syed Md. Akram Hussian and others), 2006(4) PLJR 260 . In Shree Chandeshwari Kalui (Supra), a learned Single Judge of this Court has held that amendment at appellate stage would not be permissible unless the Court is satisfied that even after due diligence the plaintiff could not raise the matter before commencement of trial in view of the amended Order-VI Rule-17 and more particularly the proviso thereto which has been introduced in the year 2002. Similar view has been taken by the learned Single Judge in his another decision that after coming in force Code of Civil Procedure (Amendment)Act,2002 specially proviso to the Rule 17 of Order VI, the onus would be on the party seeking amendment to satisfy that in spite of due diligence, the issue of amendment could not be raised before the commencement of trial. 13. Prima facie, this limb of argument seems to be very attractive as this Court would also be in full agreement with the view expressed in Sayed Hasibuddin Vs. Syed Md. Akram Hussain and others (Supra). However, it would have to be tested as to whether the amended provision, specially the aforesaid proviso to the Order VI Rule-12, would be applicable in the present case or not. The new Rule VI Order-17 has been brought as a substitution to the earlier provision contained in the Civil Procedure Code by the Code of Civil Procedure (Amendment) Act,2002 and of course a proviso has been introduced vide Section 7 of the aforesaid Amendment Act laying down 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. However, Sub Section 2(b) of the Section 16 of the Code of Civil Procedure (Amendment) Act,2002, which is a repeal and savings provisions provides as under : “(2)(b) the provisions of rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by section 16 of the Code of Civil procedure (Amendment) Act, 1999 and by section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and section 7 of this Act.” 14. From perusal of the aforesaid provision it emerges that the provisions contained in Rules 5, 15, 17 and 18 of Order VI of the first schedule inserted or substituted by Section 16 of the earlier Amendment Act of 1999 and by Section 7 of the Amendment Act of 2002 would not apply in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act,1999 and Section 7 of the 2002 Amendment Act. Now the question would be that the suit having been filed in the year 1994 and even the appeal having been preferred in the year 1996, whether the aforesaid amended provision of Order VI Rule-17 would be applicable in the present case ? This issue is also no longer res integra as the same stands decided by another learned Single Judge of this Court in Sri Shankar Bhagwan and others Vrs. The State of Bihar and others, 2008(2) PLJR 588 clearly laying down that the substituted provision of Rules 17 and 18 of Order VI by the Amending Act,2002 shall not apply to the cases filed prior to the commencement of Amending Act. The relevant passage from the aforesaid decision of this Court is reproduced as under for better appreciation : “9. From the aforesaid provisions of law it is quite apparent that the Legislature had clearly meant that generality provided in Section 6 of the General Clauses Act, 1897 with respect to effect of repeal was not affected by the Amending Act and that the provision of Rules 17 and 18 of Order VI of the Code as substituted by the Amending Act of 2002 shall not apply to the cases filed prior to the commencement of the Amending Act. In the instant case admittedly suit was filed in the year 1988, whereas the aforesaid Amending Act came into force on 1.7.2002, hence the amended provision of the Code with respect to amendment of the pleadings would not be applicable to the instant suit and any amendment sought to be made in the pleadings of that suit would be governed by the provision of Order VI Rule 17 of the Code which was in force prior to the coming into force of the Amending Act and thus for allowing amendment after commencement of the trial, the court is not required to come to any conclusion that in spite of due diligence the party could not raise the matter before commencement of trial in the suit and amendment of pleading can be allowed at any stage of the proceeding of the suit provided it is just and is necessary for determining the real question in controversy between the parties.” 15. It would be apparent from perusal of the aforesaid decision that the amendment sought to be made in the pleadings of the concerned suit, which had been filed earlier to coming of the amended provision, would be governed by the provision which was in existence prior to the Amendment Act. Accordingly, the court, while dealing with the issue of amendment would not be required to ascertain as to whether the party concerned could have raised the matter before commencement of the trial or not despite due diligence and amendment of pleading can be allowed at any stage of the proceeding of the suit provided it is just and necessary for determination of the lis between the parties. 16. This Court is also in full agreement with the views expressed by the learned Single Judge in Sri Shankar Bhagwan and others (Supra). Thus, it is held that, the present case, the suit and appeal having admittedly been filed prior to coming of the amendment in the year 2002 or even of the year 1999, would be governed by the provisions of Rule VI Order 17 which was in existence before coming of the Amending Act,2002. 17. Thus, it is held that, the present case, the suit and appeal having admittedly been filed prior to coming of the amendment in the year 2002 or even of the year 1999, would be governed by the provisions of Rule VI Order 17 which was in existence before coming of the Amending Act,2002. 17. Thus, the submission raised on behalf of the defendants-respondents, that one would have to come to the conclusion that despite due diligence the same would not have been raised by the plaintiff before the commencement of trial before allowing amendment in the present matter, would have to be rejected. 18. Now it is to be considered as to whether there is any malafide intention of the plaintiff by bringing the proposed amendment and whether the proposed amendment is of the extent which could be termed as a departure of plaintiff from his earlier admitted case or whether the same would be necessary for determination or adjudication of the lis ? As has been discussed earlier, the plaintiff only wants to incorporate boundaries of the lands described in Schedules 1 and 2. Plaintiff has sought declaration that the two sale deeds, at the strength of which the defendants claim their title and possession, be declared to be a sham transaction. There could be no dispute with regard to the land in dispute which must have been described in the sale deed also and which is a part of the larger Plot Nos.431 and 432. It is also apparent that by incorporating the boundary the plaintiff can neither increase nor decrease the area or dimension which has already been disclosed in Schedules 1 and 2 of the plaintiff. Thus, in my opinion, by the proposed amendment, the plaintiff is not seeking withdrawal of his earlier stand. So far the contention of the plaintiff that if a decree is passed in his favour then its execution may be difficult if the boundaries are not shown also appears to be correct as the petitioner has definitely sought a decree of recovery of possession also. Thus, in my view, incorporation of boundary would be just and proper for adjudication of the matter. Thus, in my view, incorporation of boundary would be just and proper for adjudication of the matter. Even if it is permitted at the appellate stage it would not put the defendants in any surprise or deprive them for any benefit which had been accrued to them, as defendant has not been able to demonstrate that they will suffer any irreparable loss if the amendments are allowed. So far the malafide part is concerned, the court below has of course come to a conclusion that the prayer for incorporation of boundary has been made with malafide intention but it has not recorded reasons for reaching to such conclusion. Learned counsel for the defendant could not demonstrate before this Court that the plaintiff-petitioner would be able to reap any benefit out of such amendment or had either been benefited by hiding such boundaries or that the suit concerned was dismissed solely on the ground that the petitioner has not given the boundary of land in dispute. Thus, it appears that the term „malafide? has been used by the court below only due to the reason that amendment has been made at a belated stage. 19. The Apex Court in its decision rendered in Nanduri Yogananda Lakshminarasimhachari and others Vrs. Sri Agastheswaraswamivaru, AIR 1960 Supreme Court 622 had allowed amendment of plaint at the appellate stage even by addition of a new prayer after consideration that all the necessary allegations had been made in the plaint and the requisite pleas had been raised by the appellants; an issue was framed on the question and the parties were fully cognizant of the points in controversy. In the present case also, it is not controverted that the parties were fully aware of the points in controversy and that they have led evidence on the issues framed. The non-mentioning of boundary could only create a technical hurdle in final adjudication. Similar views have been expressed in several other decisions, for example, rendered in South Konkan Distilleries and another Vrs. Prabhakar Gajanan Naik and others, AIR 2009 Supreme Court 1177, in Bakshish Singh Vrs. Prithi Pal Singh and others, 1995 Supp(3) SCC 577 including a decision rendered by this Court in Revajeetu Builders and Developers Vrs. Narayanaswamy and sons and others, 2009(10) Supreme Court Cases 84 laying down the principles on which the amendments in pleadings could be allowed. Prabhakar Gajanan Naik and others, AIR 2009 Supreme Court 1177, in Bakshish Singh Vrs. Prithi Pal Singh and others, 1995 Supp(3) SCC 577 including a decision rendered by this Court in Revajeetu Builders and Developers Vrs. Narayanaswamy and sons and others, 2009(10) Supreme Court Cases 84 laying down the principles on which the amendments in pleadings could be allowed. Some of the parameters disclosed in the aforesaid decision are as to whether the amendment sought is imperative for proper and effective adjudication of lis, whether the application of amendment is bonafide or malafide, whether the amendment would cause prejudice to the other side or that would lead to injustice etc. It has further been observed that the courts would have also to consider as to whether the proposed amendment constitutionally or fundamentally changes the nature of the case or if such proposed amendment is barred by any law of limitation. 20. In my opinion almost all the parameters set forth by the Apex Court in the aforesaid decision stand satisfied in favour of the plaintiff in the present case. Thus, it is held that the court below has committed error of jurisdiction in not allowing the proposed amendment in the plaint. Accordingly, the order impugned is set aside and it is held that the plaintiff is entitled for such amendment. The court below would take steps for providing opportunity to the petitioner to amend the plaint and, thereafter, would proceed further in accordance with law. 21. However, in view of the fact that it is also admitted position that the petitioner has made this prayer of amendment at much belated stage and that too before the appellate court only, the amendment would be allowed by the appellate court after payment of a cost of Rs.5,000/- by the plaintiff in favour of the respondent nos.1 and 2 which should be paid within one month from the date of receipt/production of a copy of this order before the appellate court. The appellate court after receipt/production of a copy of this order would give one month’s time to the plaintiff to pay the aforesaid cost in favour of the respondent nos.1 and 2 in equal shares. Thereafter, the plaintiff should be permitted to incorporate the amendment in the plaint inserting the boundaries. 22. The appellate court after receipt/production of a copy of this order would give one month’s time to the plaintiff to pay the aforesaid cost in favour of the respondent nos.1 and 2 in equal shares. Thereafter, the plaintiff should be permitted to incorporate the amendment in the plaint inserting the boundaries. 22. Before parting with the issue I must indicate that the court below has stated that the petitioner has made a prayer for amendment at this belated stage and, thus, perhaps reached to the conclusion that it has been done with malafide intention but at the same time it appears that the appeal itself is pending since the year 1996. Therefore, the court below should take steps for expeditious disposal of the appeal. Accordingly, this writ application stands allowed.