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2014 DIGILAW 2786 (ALL)

MUNNI DEVI v. SONA DEVI

2014-09-09

PANKAJ MITHAL

body2014
JUDGMENT Hon’ble Pankaj Mithal, J.—Heard Sri K.K. Dubey, learned counsel for the petitioner and Sri B.N. Agarwal, learned counsel for the contesting respondent No. 1. 2. Petitioner is the owner and landlord of house No. 1167/16A (Old) present No. 1244/3, situate in Gondu Ka Hata, Civil Line, Sipri Bazar, Jhansi. 3. Petitioner has purchased the aforesaid house vide sale-deed dated 22.4.1992 and had given information of the said purchase to the sitting tenant respondent No. 1 vide notice dated 28.5.1992 which was replied on 2.6.1992. Despite the above, respondent No. 1 started depositing rent under Section 30 of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) on the ground that there is a bona fide doubt as to the person entitle to receive rent. 4. Petitioner vide notice dated 22.1.01 demanded the arrears of rent and determined the tenancy of the respondent No. 1. When the respondent No. 1 failed to tender rent despite notice, petitioner instituted a suit in the small causes Court for arrears of rent and eviction of respondent No. 1on the basis of the aforesaid notice. The suit has been dismissed on the ground that the petitioner herself has not entered the witness box either to prove the notice or the service of the notice. 5. The above finding has been affirmed by the revisional Court. 6. The judgment and order of the Court of first instance dated 22.8.2005 and that of the revisional Court dated 27.9.2008 have been impugned by the petitioner by means of this writ petition. 7. The submission of Sri K.K. Dubey, learned counsel for the petitioner is that the notice and the service of the notice was duly proved by the oral evidence of the husband of the petitioner. The Courts below are not justified in discarding the evidence of the husband on the basis of the decision of the Supreme Court Janki Vasdev Bhojwani v. Indu Sindh Bank Ltd., AIR 2005 SC 439 : 2005(2) SCC 217 , inasmuch as Section 120 of the Indian Evidence Act, 1872 permits the husband to depose on behalf of wife. 8. Shri B.N. Agarwal defends the orders of the Courts below contending that the husband was only the power of attorney holder of the petitioner who is not entitle to appear as witness for the principal. 9. 8. Shri B.N. Agarwal defends the orders of the Courts below contending that the husband was only the power of attorney holder of the petitioner who is not entitle to appear as witness for the principal. 9. The petitioner in paragraph 4 of the plaint has clearly stated that he had issued and sent a notice dated 22.1.01 to the respondent No. 1 which was got prepared by the Advocate Abhay Kumar Bhartiya and the said notice was served upon the respondent No. 1 on 24.1.01 by refusal. 10. The respondent No. 1 in reply to paragraph 4 of the plaint vide paragraph 4 of the written statement has stated that he had not received any notice and that he has not refused to accept any notice. The service by refusal has been manipulated by the petitioner in connivance with the postal authorities. 11. A plain reading of the above averments of the plaint and the written statement demonstrates that the respondent No. 1 only denied the service of the notice and has not set up invalidity of the notice as a defence. 12. It has been settled in D.N. Mushi v. Gayatri Devi, 1961 ALJ 353, that the Courts can legitimately draw an inference that a notice purported to have been given by an Advocate on behalf of a party was so given unless the contrary is pleaded and proved. Therefore, there is presumption of a valid notice unless contrary is pleaded and proved. 13. The pleadings demonstrate that the respondent No. 1 had not questioned the notice. He only disputed its service. Therefore, the giving of notice and its validity was accepted/admitted which required no evidence to prove it. 14. This apart the husband of the petitioner who has entered the witness box as PW1 clearly stated that the notice was got drafted by Abhay Kumar Bhartiya Advocate. It was signed by him in his presence. The carbon copy of said notice is paper No. 7C. His wife ie the petitioner has accompanied him to the office of the Advocate for getting the notice dated 22.1.01 prepared and drafted. His wife instead of signing puts a thumb impression and that the notice bears her thumb impression. 15. The above notice was sent to the respondent No. 1 by registered post receipt paper No. 8C. It was sent at her correct address. His wife instead of signing puts a thumb impression and that the notice bears her thumb impression. 15. The above notice was sent to the respondent No. 1 by registered post receipt paper No. 8C. It was sent at her correct address. The envelop containing the notice 9C as returned contains the correct and full address of respondent No. 1. It bears the endorsement of refusal in the hand of postman. 16. The above statements of the PW1 the husband of the petitioner is also sufficient to prove the notice and its service but the issue is whether his evidence is admissible. 17. The Apex Court in Janki Vasdev Bhojwani (supra) which has been followed in Man Kaur (Dead) by LRs. v. Hartar Singh Sangha, (2010) 10 SCC 512 , has held that the plaintiff has to enter the witness box and state his own case on oath and if he does not do so to depose or to get cross-examined adverse inference can be drawn against him. The power of attorney holder of the plaintiff may also enter in the witness box but he cannot depose about the facts of which he has no personal knowledge. 18. The ratio of the above authorities is that the power of attorney holder of the plaintiff cannot depose about the facts which are within the personal knowledge of the plaintiff or which are not within the personal knowledge of the power of attorney holder. The above authorities are not on the proposition that the husband cannot depose on behalf of the wife or that power of attorney cannot appear as a witness at all for the plaintiff. 19. On the contrary Section 120 of the Indian Evidence Act, 1872 provides for the deposition of the husband and wife as witnesses. It reads as under : “120. Parties to civil suit, and their wives or husbands, Husband or wife of person under criminal trial-In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively shall be competent witness.” 20. The above provision clearly provides that in all civil proceedings the husband or wife of any party to the suit shall be a competent witness. 21. In criminal proceedings against any person, the husband or wife of such person, respectively shall be competent witness.” 20. The above provision clearly provides that in all civil proceedings the husband or wife of any party to the suit shall be a competent witness. 21. The aforesaid provision permits the husband to depose for the wife and the vice versa. 22. The above Rule of law has been enunciated on the well founded Indian mythology wherein husband and wife are believed to be one person and not a separate. It is in consonance with the concept of ‘Ardhnariswar’. Even in western culture, wife is referred as a better half meaning to be part of the same person. 23. In Rajni Shukla v. Special Judge Banda, 2007(10) ADJ 136 , a learned Single Judge of this Court while considering the provision of Section 120 of the Evidence Act vis-a-vis the above decision of the Supreme Court in Janki Vasdev Bhojwani (Supra) concluded and held the husband and wife can depose for one another and as such directed that husband of the plaintiff to give oral evidence which shall be confined to the facts within his knowledge. 24. In view of above decision, there is no bar on part of the husband to depose on behalf of the plaintiff wife but his statement has to be confined to the facts within his knowledge. 25. A similar view has been expressed by Bench of Andra Pradesh High Court in the case of Ved Pal v. Shakuntala @ Aruna, Andhra Pradesh Law Times 35 wherein it has been categorically laid down that Section 120 of the Evidence Act permits the husband to speak on behalf of wife and that the husband can always speak about the factual circumstances in order to establish the case. 26. In K. Saroja v. Valliammal and others, 1996 MLJ 199 , it has been held that under Section 120 of the Evidence Act, the husband is a competent witness for the wife in civil proceedings. 27. This is exactly what has been done by the husband of the petitioner in the present case he has deposed about the facts within his personal knowledge. The statement made by the husband of the petitioner as PW1 is in respect of the facts which are within his knowledge pertaining to the issuance of notice through the advocate concerned. 28. This is exactly what has been done by the husband of the petitioner in the present case he has deposed about the facts within his personal knowledge. The statement made by the husband of the petitioner as PW1 is in respect of the facts which are within his knowledge pertaining to the issuance of notice through the advocate concerned. 28. Thus, in view of the aforesaid facts and circumstances and the legal position as enunciated above, the evidence of the husband of the petitioner so as to prove the notice and its service upon the respondent No. 1 is admissible under Section 120 of the Evidence Act and the Courts below manifestly erred in law in brushing it aside on the basis of the decision of the Supreme Court in Janki Vasdev Bhojwani (Supra) case and in dismissing the suit. 29. A distinction has to be made between deposition made by the power of attorney holder and that by the husband or the wife of the plaintiff. The evidence of the power of attorney holder may be limited and not to the standard of that of not in certain circumstances be competent to the husband or the wife of the plaintiff who can always depose on his/her behalf to prove the case though the said evidence may not be stretched to the facts beyond the personal knowledge of the deponent. 30. The last submission of Sri B.N. Agarwal, learned counsel for the respondent No. 1. is that the respondent has denied the service of the notice and the husband of the petitioner cannot make any statement regarding it. The presumption under Section 27 of the General Clause Act is attracted where a notice is sent to the addressee at his correct address by registered post and the notice is deemed to be served in the normal course of business until and unless contrary is proved. The presumption therein is rebuttable in nature and it is open to the party rebutting the presumption to prove that the notice was not actually served by examining the postman, if necessary or by adducing other evidence. 31. The presumption therein is rebuttable in nature and it is open to the party rebutting the presumption to prove that the notice was not actually served by examining the postman, if necessary or by adducing other evidence. 31. The issuance of notice and its service as stated earlier was within the personal knowledge of the husband of the petitioner and he has discharged the burden of proving the same by his statement which has been held to be admissible in evidence in view of Section 120 of the Evidence Act. The respondents have done nothing or very little to rebut the presumption and to prove contrary to it. No evidence was adduced to deny the service of notice except for the bald statement that the respondent No. 1 has not denied receiving it or that the service by refusal has been manipulated. The submission thereof is bereft of any merit. 32. Accordingly, the impugned orders dated 29.9.2008 and 22.8.2005 are quashed and the matter is remanded to the Court of first instance for retrial in accordance with law and it is expected that the Court will do well to decide the suit afresh as expeditiously as possible preferably within a period of six months from the date of production of the certified copy of this order. ————— [2014(11) ADJ 311] ALLAHABAD HIGH COURT BEFORE : RAJAN ROY, J. SANTLAL .....Petitioner Versus RAMKEWAL AND OTHERS ....Respondents (Civil Misc. Writ Petition No. 36916 of 2014, decided on 9th September, 2014) Code of Civil Procedure, 1908—Order VI, Rule 17—Plaint—Amendment—Rejection of—Petitioner filed amendment belatedly—There was nothing in the amendment application to show the satisfaction of the condition mentioned in the proviso to Order VI Rule 17—The Court below held to be justified in observing that said application appears to have been filed only to delay the proceedings—No error in the impugned order. [Paras 9 to 12] Result; Petition Dismissed. Cases cited : 2002 (7) SCC 559 ; 2006 All CJ 989 (Para 4); 2005(6) SCC 544 (Para 8); 2008(14) SCC 364 (Para 9); 2012(3) SCC 300 (Para 10)-Referred. Counsel : Manish Kumar Nigam and Pawan Kumar Srivastava for the Petitioner; Awadhesh for the Respondents. JUDGMENT Hon’ble Rajan Roy, J.—Heard Sri Manish Kumar Nigam, learned counsel for the petitioner and Sri Awadhesh, learned counsel for the respondents. 2. Counsel : Manish Kumar Nigam and Pawan Kumar Srivastava for the Petitioner; Awadhesh for the Respondents. JUDGMENT Hon’ble Rajan Roy, J.—Heard Sri Manish Kumar Nigam, learned counsel for the petitioner and Sri Awadhesh, learned counsel for the respondents. 2. The petitioner plaintiff has filed this writ petition challenging the orders of the trial Court and the revisional Court rejecting his application under Order VI Rule 17 for amendment of the plaint. 3. The petitioner plaintiff filed a suit bearing O.S. No. 685 of 2004 seeking permanent injunction against the respondents defendants from interfering in his peaceful possession on the sahan and passage as demarcated in the map annexed with the plaint and for not making any construction therein. The Court Amin was directed to submit survey report and he submitted the said report on 17.7.2004. On 11.8.2004, a temporary injunction was granted directing the parties to maintain status quo. Issues were framed in the suit on 21.5.2008. According to the petitioner plaintiff, the respondents defendants raised certain constructions after filing of the suit but prior to submission of the report of the Court Amin and thereafter again in October, 2009. The Court Amin’s report was affirmed subject to evidence on 7.12.2009. After the submission of the affidavit and examination in chief of P.W.-1 under order XVIII Rule 4, his cross-examination took place on 2.9.2012. Thereafter, the affidavit under Order XVIII Rule 4 of P.W.-1 was also filed. On 21.2.2012, an application for amendment of the plaint was filed by the petitioner plaintiff alleging about the aforesaid constructions having been raised by the respondents defendants. The prayer clause was sought to be amended by including a prayer for mandatory injunction directing the defendants to demolish the construction raised by them and for handing over possession to the plaintiff etc. A prayer for deleting the entire map annexed with the plaint and to substitute it by another map, a copy of which was annexed with the amendment application, was also made apart from other amendments sought. The trial Court rejected the application for amendment vide 24.5.2013 firstly on the ground that the same had been filed only to delay the suit proceedings and that it was barred by limitation. The trial Court rejected the application for amendment vide 24.5.2013 firstly on the ground that the same had been filed only to delay the suit proceedings and that it was barred by limitation. The trial Court took note of the fact that certain fresh constructions on the land in question were mentioned in the report of the Court Amin submitted in the year 2004 itself but the plaintiff did not deem it necessary to amend the plaint. The alleged subsequent construction is also stated to have taken place in October, 2009 despite the operation of the status quo order but the plaintiff neither initiated any proceedings under Order XXXIX Rule 2A nor filed any application to amend the plaint. He waited for three years before moving the application dated 21.2.2012. For the aforesaid reasons, the trial Court rejected the application. Being aggrieved, petitioner plaintiff filed a revision being Civil Revision No. 118 of 2013. The said revision has also been dismissed on 15.5.2014. The revisional Court has taken into consideration the provision contained in the proviso to Order VI Rule 17 as inserted w.e.f. 1.7.2002 and has held that the plaintiff has failed to establish that the prayer for amendment in question could not be raised before the commencement of the trial, in spite of due diligence on his part. The trial Court has held that plaintiff did not exercise due diligence and in spite of being aware of the relevant facts, chose to file an application for amendment only on 21.2.2012, i.e. eight years after filing of the suit. The revisional Court has also held that the scope of revision is very limited and in the facts and circumstances of the case, the order of the trial Court dated 24.5.2013 rejecting the amendment application cannot be said to be erroneous. 4. The learned counsel for the petitioner contended that a liberal approach in allowing amendment application has been followed by the Courts throughout, therefore, the impugned orders are not sustainable. The amendment in question does not change the nature of the case. The limitation for filing of suit for possession is 12 years, therefore, the same has also not expired and as such, if a suit was maintainable, then there was no reason as to why ongoing suit itself not be allowed to be amended. The amendment in question does not change the nature of the case. The limitation for filing of suit for possession is 12 years, therefore, the same has also not expired and as such, if a suit was maintainable, then there was no reason as to why ongoing suit itself not be allowed to be amended. The respondents defendants were in possession and therefore, no prejudice would be caused to them. The impugned orders are not sustainable in view of pronouncements of the Supreme Court in Sampath Kumar v. Ayyakannu and another, 2002 (7) SCC 559 , Rajesh Kumar Aggarwal and others v. K.K. Modi, 2006 All CJ 989, 2002 (2) SCC 472, 2004 (6) SCC 415 and 2006 (3) ACJ 1951. 5. Learned counsel for the respondents, on the other hand, submitted that the suit was filed on 1.7.2004, the construction in question existed prior to filing of the suit as would be evident from the report of the Court Amin submitted on 17.7.2004, no construction was made by the defendants after filing of the suit and passing of the injunction order on 11.8.2004, that is why no application under Order XXXIX Rule 2A was filed by the plaintiff. The respondents have filed a supplementary-affidavit in this writ petition in pursuance of an order dated 21.7.2014 categorically stating that no construction has been raised by them after grant of injunction on 11.8.2004, and that the amendment application was filed mala fide with the intention to linger on the proceedings, which had reached the state where P.W.-1 and P.W.-2 had been examined. The application for amendment was filed on baseless and concocted allegations. The Commissioner’s report dated 17.7.2004 was affirmed subject to evidence on 7.12.2009 but till then no objection was raised by the plaintiff. Even thereafter, he waited for three years before filing the amendment application in the year 2012. No documentary evidence has been filed to prove the alleged construction in the year 2009. Learned counsel for the respondents relied upon the judgment of this Court dated 1.3.2011 passed in Civil Misc. Writ Petition No. 68363 of 2010 and the judgment dated 7.3.2011 passed in Civil Writ Petition No. 52123 of 2010 in support of his contentions, that mala fide amendment application should not be entertained. 6. Learned counsel for the respondents relied upon the judgment of this Court dated 1.3.2011 passed in Civil Misc. Writ Petition No. 68363 of 2010 and the judgment dated 7.3.2011 passed in Civil Writ Petition No. 52123 of 2010 in support of his contentions, that mala fide amendment application should not be entertained. 6. In rejoinder, the learned counsel for the petitioner submitted that no advantage could be gained by the petitioner by filing a belated amendment as the respondents are admittedly in possession. Substantial relief could not be granted to the petitioner plaintiff unless and until, the relief for possession and demolition of the construction was allowed to be incorporated alongwith other amendments sought. The amendments were necessary for adjudication of the controversy. 7. The provisions of order VI Rule 17, C.P.C. as amended w.e.f. 1.7.2002 read as under: “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.” 8. The Supreme Court in the case of Salem Advocate Bar Association v. Union of India, 2005 (6) SCC 344 , while considering the provisions of Order VI Rule 17, C.P.C. held in para-26 as under: “Order VI Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision.” 9. The Supreme Court in the case of Rajkumar Gurawara (Dead) Thr. Lrs v. M/s. S.K.Sarwagi & Co. Pvt. Ltd., 2008 (14) SCC 364, while considering the provisions of Order VI Rule 17, C.P.C. as hereinabove observed as under: “12. In order to consider whether the appellant/plaintiff has made out a case for amendment of his plaint, it is useful to refer Order VI Rule 17 CPC which reads as under : “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.” The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this rule is subject to proviso appended therein. The said rule with proviso again substituted by Act 22 of 2002 with effect from 1.7.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings are able to satisfy the Court that in spite of due diligence they could not raise the issue before the commencement of trial and the Court is satisfied with their explanation, amendment can be allowed even after commencement of the trial. 13. To put it clear, Order VI Rule 17 C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. 13. To put it clear, Order VI Rule 17 C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso. 17. We have already explained the implication of proviso to Rule 17. Though even after commencement of the trial, parties to the proceeding are entitled to seek amendment, in the light of the factual details such as clear information in the reply notice prior to the filing of the suit and specific plea in the written statement of D-1 which contained details of Government orders leasing out the suit property in favour of D-2, the action of the plaintiff at the stage of argument cannot be permitted. Admittedly, the plaintiff failed to adhere to the said recourse at the appropriate time.” 10. The Apex Court upheld the judgments of the High Court and the lower Courts rejecting the application for amendment on the ground that the plaintiff failed to exercise due diligence and as such the conditions prescribed in the proviso to Order VI Rule 17 were not specified. The Supreme Court again had the occasion to consider the aforesaid provision in the case of J.Samuel and others v. Gattu Mhesh and others, 2012 (3) SCC 300, has observed as under: “16. As stated earlier, in the present case, the amendment application itself was filed only on 24.9.2010 after the arguments were completed and the matter was posted for judgment on 4.10.2010. As stated earlier, in the present case, the amendment application itself was filed only on 24.9.2010 after the arguments were completed and the matter was posted for judgment on 4.10.2010. On proper interpretation of proviso to Rule 17 of Order VI, the party has to satisfy the Court that he could not have discovered that ground which was pleaded by amendment, in spite of due diligence. No doubt, Rule 17 confers power on the Court to amend the pleadings at any stage of the proceedings. However, proviso restricts that power once the trial has commenced. Unless the Court satisfies (sic itself) that there is a reasonable cause for allowing the amendment, normally the Court has to reject such request. 17. An argument was advanced that since in the legal notice sent before filing of the suit, there is reference to readiness and willingness and the plaintiff has also led in evidence, nothing precluded the Court from entertaining the said application with which we are unable to accept in the light of Section 16(c) of the Specific Relief Act as well as proviso to Order VI Rule 17. The only reason stated so in the form of an affidavit is omission by “type mistake”. Admittedly, it is not an omission to mention a word or an arithmetical number. The omission is with reference to specific plea which is mandated in terms of Section 16(c) of the Specific Relief Act. 18. The primary aim of the Court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the Court so that the Court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The Court’s discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. Therefore, at times it is required to permit parties to amend their plaints. The Court’s discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. However to balance the interests of the parties in pursuit of doing justice, the proviso has been added which clearly states 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.” (emphasis supplied) 19. Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term ‘due diligence’ is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial. 20. A party requesting a relief stemming out of a claim is required to exercise due diligence and is a requirement which cannot be dispensed with. The term “due diligence” determines the scope of a party’s constructive knowledge, claim and is very critical to the outcome of the suit. 23. Though the counsel for the appellants have cited many decisions, on perusal, we are of the view that some of those cases have been decided prior to the insertion of Order VI Rule 17 with proviso or on the peculiar facts of that case. This Court in various decisions upheld the power that in deserving cases, the Court can allow delayed amendment by compensating the other side by awarding costs. The entire object of the amendment to Order VI Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other’s case. It also helps checking the delays in filing the applications. The entire object of the amendment to Order VI Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other’s case. It also helps checking the delays in filing the applications. [vide Aniglase Yohannan v. Ramlatha and others, (2005) 7 SCC 534 , Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N., (2006) 12 SCC 1 , Chander Kanta Bansal v. Rajinder Singh Anand, (2008) 5 SCC 117 , Rajkumar Gurawara v. S.K. Sarwagi and Co. (P.) Limited and another, (2008) 14 SCC 364, Vidyabai and others v. Padmalatha and another, (2009) 2 SCC 409 and Man Kaur (dead) By LRS v. Hartar Singh Sangha, (2010) 10 SCC 512 .” 11. In this case also, the Supreme Court upheld the judgment of the High Court and the trial Court rejecting the application for amendment on the ground that the conditions mentioned in the proviso to Order VI Rule 17, i.e. due diligence, were not satisfied. 12. In the instant case, admittedly the amendment sought was at the post trial stage, therefore, it was incumbent upon the petitioner plaintiff to establish that the said pleas could not have been raised before the commencement of trial Court in spite of due diligence on his part. The application for amendment does not disclose any such averment nor any effort was made in this regard during the course of arguments either before the Courts below or before this Court. The suit was filed on 1.7.2004, the Commissioner’s report was submitted on 17.7.2004, which referred to certain fresh constructions upto the plinth area, in spite of it, no effort was made by the plaintiff to amend the plaint. A status quo order was passed on 11.8.2004. If any construction was raised in October, 2009, the plaintiff would have initiated proceedings under order XXXIX Rule 2A on the ground of violation of the status quo order, which was not done. Besides this, even thereafter, the plaintiff allowed three years to pass and the stage of evidence to reach wherein the P.W.-2 submitted his affidavit by way of examination in chief under Order 18 Rule 4, only thereafter the petitioner filed the application for amendment, on 21.2.2012. Besides this, even thereafter, the plaintiff allowed three years to pass and the stage of evidence to reach wherein the P.W.-2 submitted his affidavit by way of examination in chief under Order 18 Rule 4, only thereafter the petitioner filed the application for amendment, on 21.2.2012. There is nothing in the amendment application to show the satisfaction of the condition mentioned in the proviso to Order VI Rule 17. The Courts below have rightly rejected the application for amendment filed at such a belated stage. The learned Courts below are also justified in observing that the said application appears to have been filed only to delay the proceedings. Tested on the anvil of the pronouncements of the Supreme Court referred hereinabove, I do not find any error in the impugned orders. There is a distinction between pre-trial and post-trial amendments as held by the Supreme Court. The proviso to Order VI Rule XVII has been added to balance the interest of the parties in pursuit of doing justice. The words ‘due diligence’ mentioned in the proviso cannot be ignored or treated lightly. In the case of J. Samual (supra), the Supreme Court has even considered the authorities where it has been held that even belated amendment can be allowed by compensating/awarding costs, yet, it rejected the contentions in view of the proviso to Order VI Rule 17 referred above. 13. In view of the above discussion, I do not find any error in the impugned orders, the writ petition is accordingly dismissed. —————