Judgment : 1. The petitioner herein is the petitioner in O.A. No.194/81 on the files of the Forest Tribunal, Kozhikode, as well as the petitioner in I.A. No.9/10 filed therein. The above Original Application was filed for a declaration that the plaint schedule property is not a private forest and thereafter not vested in the State under Section 3(1) of the Kerala Private Forests (Vesting and Assignment) Act, 1971, (for short 'the Act'). The Forest Tribunal had partly allowed the application finding that plot No.P1 shown in Ext.C1 report measuring 23.36 Hectares and plot No.S in Ext.C2 measuring 0.8 Hectares are not private forests. Aggrieved by the Award of the Tribunal, the State filed M.F.A. No.332/86 and the petitioner filed M.F.A. No.319/86. Initially, the appeal filed by the State was allowed and one filed by the petitioner was dismissed. The petitioner filed a Review Petition before this Court. This Court reviewed the matter and allowed both the M.F.As and remanded the case to the Tribunal after setting aside the Award of the Tribunal. After the remand, the petitioner filed I.A. No.9/10 in O.A.No.194/81 under Order 6 Rule 17 r/w Section 151 of the Code of Civil Procedure praying for permission to amend the Original Application to include the claim for exemption under Sections 3(2) and 3(3) of the Act. 2. The respondents filed a counter statement resisting the amendment application. According to the respondents, the application is not maintainable, in view of the remand order passed by this Court in M.F.A. Nos.319/86 and 332/86. Thus, the application for amendment goes beyond the scope and extent of remand. Secondly, the alternate claim sought to be incorporated by way of amendment is one barred by limitation under Section 3(2) of the Act. In short, if the petitioner is allowed to incorporate the pleadings, that would defeat the valid plea of limitation already accrued in favour of the respondents. Thirdly, the application for amendment is highly belated and stands without sufficient reasoning to condone the delay. As such, the application is not maintainable in view of the proviso under Order 6 Rule 17 of the C.P.C. After considering the rival contentions, the court below dismissed the application, accepting the objection raised by the respondents. The legality and propriety of the findings under which the court below dismissed the application are under challenge in this writ petition. 3. The legality and propriety of the findings under which the court below dismissed the application are under challenge in this writ petition. 3. The learned counsel for the petitioner advanced arguments challenging the findings of the court below. According to the learned counsel, the impugned order was issued on a misreading of the directions in Ext.P1 judgment of this Court. The court below went wrong by finding that the remand was made for the sole purpose of examining whether the property is a private forest or not as defined under the Act, particularly, when this Court has not stated anywhere in Ext.P1 that the remand is a closed remand. According to the petitioner, in Ext.P1 judgment, this Court has not stated that the petitioner should never claim exemption under Sections 3(2) and 3(3) of the Act. If that be so, the petitioner is entitled to make alternate claim, after remand, by way of amendment. Similarly, the court below has erred in considering the question of limitation in the application for amendment. 4. Per contra, the learned Special Government Pleader advanced arguments to justify the findings of the court below. According to him, the court below has correctly considered the matter in issue involved in the amendment application. In view of the scope of remand under Ext.P1 judgment, the matters sought to be incorporated would go beyond the scope and extent of enquiry specifically described in Ext.P1 judgment. It is also contended that if the amendment is allowed, that would take away the valid plea of defence under the Limitation Act, in view of Rule 3 of the Kerala Private Forests (Tribunal) Rules, 1972, which provides 60 days for claiming exemption under Sections 3(2) and 3(3) of the Act. The petitioner ought to have claimed relief under Sections 3(2) and 3(3) of the Act in the application when it was originally filed. So also, the application is not maintainable as the same is hit by the proviso to Order 6 Rule 17 of the C.P.C. 5. Heard both sides. I have given my anxious consideration to the rival contentions advanced at the Bar. The short question that arises for consideration is whether there is any illegality or impropriety in the findings whereby the court below has dismissed the application for amendment filed by the petitioner after the remand. 6. Heard both sides. I have given my anxious consideration to the rival contentions advanced at the Bar. The short question that arises for consideration is whether there is any illegality or impropriety in the findings whereby the court below has dismissed the application for amendment filed by the petitioner after the remand. 6. As rightly observed by the court below, it is clear from the original application that the pleadings and reliefs therein are confined to the claim that the scheduled property is not a private forest and is also not vested with the Government. Needless to say, the petitioner has not incorporated pleadings to the effect that the petitioner is entitled for the benefit under Section 3 (2) or 3(3) of the Act. If the land is a private forest, it is automatically vested with the Government under Section 3(1) of the Act, unless the claimant claims that he is entitled to get exemption under Sections 3(2) and 3(3) of the Act. If the land is not a private forest as defined in the Act, it will not vest with the Government. In the original application, the specific case of the petitioner is that the petition schedule property would not fall under Section 3(1) of the Act, which defines a 'private forest'. But now, the matter sought to be incorporated by way of amendment is that if it is a private forest, he is entitled to get claim under Sections 3(2) and 3(3) of the Act. 7. As rightly pointed out by the court below, Rule 3 of the Kerala Private Forests (Tribunal) Rules, 1972, provides only a period of 60 days from the date of publication of the notification under sub-rule (2) of Rule 2A of the Kerala Private Forests (Vesting and Assignment) Rules, 1974, for claiming exemption under Sections 3(2) and 3(3) of the Act. Admittedly, the original application was filed as early on 5-10-1981 and the present amendment application is filed on 12-1-2010, that too after the remand made by this Court. In the above factual matrix, the first point to be considered is whether the application for amendment is maintainable, in view of the scope and extent of remand order passed by this Court. 8. In the above factual matrix, the first point to be considered is whether the application for amendment is maintainable, in view of the scope and extent of remand order passed by this Court. 8. Going by the remand order, it is seen that, this Court observed that the question is whether the plaint schedule property is vested with the Government under Section 3(1) of the Act. This Court further held that it was the contention of the petitioner that the land in question is not a private forest notwithstanding that it is covered under the M.P.P.F. Act. So, the petitioner Devaswom has not claimed that they are entitled to get exemption under Sections 3(2) and 3(3) of the Act. In para 4 of the above judgment, this Court further observed that the question whether it was a private forest as defined under Section 2(f)(1) of the Act as on the appointed day notwithstanding that the petitioner Devaswom is not claiming exemption under Sections 3(2) and 3(3) of the Act. Therefore, I am of the opinion that the scope and enquiry after remand would be confined to the above findings only. Though it is not specifically stated that the remand is a closed remand as contended by the learned counsel for the petitioner, on a combined reading of paragraphs 2 to 4, I find that, undoubtedly, it can be held that the remand was not an open remand and the remand was a closed one for enquiring as to the specific question referred by this Court in paragraph 4 of the impugned judgment. Hence I have no hesitation to concur with the findings of the courts below that the matters sought to be incorporated by way of amendment is contrary to the specific observation made by this Court in Ext.P1 judgment and as such the amendment application goes beyond the scope of enquiry under the remand. In the above view, the application is not maintainable. 9. Secondly, going by Rule 3 of the Kerala Private Forests (Tribunal) Rules, it is seen that the above rule provides only a period of 60 days from the date of publication of notification under sub-rule (2) of Rule 2A of the Kerala Private Forests (Vesting and Assignment) Rules 1974 for claiming exemption under Sections 3(2) and 3(3) of the Act. Secondly, going by Rule 3 of the Kerala Private Forests (Tribunal) Rules, it is seen that the above rule provides only a period of 60 days from the date of publication of notification under sub-rule (2) of Rule 2A of the Kerala Private Forests (Vesting and Assignment) Rules 1974 for claiming exemption under Sections 3(2) and 3(3) of the Act. It is true that the application in the O.A. was filed as early as on 5-10-1981 and the claim under Sections 3(2) and 3(3) of the Act was omitted in the application and the present amendment application was filed only on 12-1-2010, after 28 years from the date of filing of the application. Thus, it could be found that if the amendment application is allowed, that would take away the valid plea of defence, under the bar of limitation, accrued to the respondents after the period of 60 days from the date of publication of the notification under sub-rule (2) of Rule 2A of the Kerala Private Forests (Vesting and Assignment) Rules, 1974. Therefore, permission cannot be granted to the petitioner to incorporate the pleadings in the O.A. with respect to the claims which ought to have been raised within 60 days from the date of publication of the notification under sub-rule (2) of Rule 2A of the Kerala Private Forests (Vesting and Assignment) Rules, 1974, and stood barred by limitation. Put it differently, a claim which ought to have been raised before 28 years cannot be allowed to be incorporated by way of amendment; certainly, it would take away from the respondents the valid plea of defence under the bar of limitation accrued to them, by the lapse of time. Moreover, no application had been filed to condone the delay under Rule 3 of the Kerala Private Forests (Tribunal) Rules, 1972. Hence the court below can be justified in the finding that the amendment would take away the valid plea of defence under the Limitation Act available to the respondents. 10. The above view is further supported by the decision reported in Radhika Devi Vs. Bajrangi Singh ( (1996) 7 SCC 486 ) held by the Supreme Court. In the above decision, the Supreme Court held that where the party acquires right by bar of limitation and if the same is sought to be taken away by amendment of the pleading, the amendment in such circumstances would be refused. Bajrangi Singh ( (1996) 7 SCC 486 ) held by the Supreme Court. In the above decision, the Supreme Court held that where the party acquires right by bar of limitation and if the same is sought to be taken away by amendment of the pleading, the amendment in such circumstances would be refused. In that decision, the Apex Court relied on the decision in Laxmidas Dahyabhai Kabarwala v. Nanabhai Chunilal Kabarwala ( (1964) 2 SCR 567 ). In that decision, the Apex Court held as follows :- "It is, no doubt, true that, save in exceptional cases, leave to amend under Order 6, Rule 17 of the Code will ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by lapse of time. But this rule can apply only when either fresh allegations are added or fresh reliefs sought by way of amendment. Where, for instance, an amendment is sought which merely clarifies an existing pleading and does not in substance add to or alter it, it has never been held that the question of a bar of limitation is one of the questions to be considered in allowing such clarification of a matter already contained in the original pleading. The present is a fortiori so. The defendants here were not seeking to add any allegation nor to claim any fresh relief which they had prayed for in the pleading already filed." 11. In the light of the decisions referred above, I find that there is no illegality in the rejection of application for amendment which would defeat the valid plea of defence accrued to the respondents. 12. The third point to be considered is whether the present amendment is hit by the proviso to Order 6 Rule 17 of the C.P.C. I have already held that the present amendment application goes beyond the scope of enquiry under the remand. Admittedly, the trial commenced years back and the matter now came before the court below under the order of remand with the specific direction passed by this Court in appeal. Admittedly, the trial commenced years back and the matter now came before the court below under the order of remand with the specific direction passed by this Court in appeal. The statutory mandate under the proviso to Order 6 Rule 17 is 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 parties could not have raised the matter before the commencement of the trial. Indisputably, the trial had been commenced and the matter was remitted back under the remand. The claim under Sections 3(2) and 3(3) of the Act was a defence available to the petitioner at the time of filing the original application. It is the specific case of the petitioner that the plaint schedule property is not a private forest as defined under Section 2(f)(1) of the Act. Certainly, at the time of filing the original application itself, the petitioner could have claimed that even if the petition schedule property is a private forest, it would come under the exemption under Sections 3(2) and 3(3) of the Act. Even in the appeal stage also, the case of the petitioner is that the plaint schedule property is not a private forest as defined under Section 2(f)(1) of the Act. So, it cannot be held that in spite of due diligence, the petitioner could not have raised the claim under the exemption before the commencement of trial. Needless to say, the amendment is a belated alternative experimental exercise. I find that the amendment is hit by the proviso to Order 6 Rule 17 of the C.P.C. also. In the light of the above discussions, the writ petition is devoid of merits and dismissed accordingly.