JUDGMENT 1. This Writ Petition is directed against the order dated 31.10.2013 passed by the Civil Judge, Junior Division, “F” Court Margao, in Regular Civil Suit No. 88/2009/F, thereby allowing the application filed by the respondents/ plaintiffs under Order 6 rule 17 read with Section 151 of CPC for amendment of the pleadings in the plaint. 2. It is the case of the respondents that they are owners in possession of the suit property bearing survey nos.72/2, 72/3, 72/4 of village Cuncolim, Salcete, Goa, this property having being purchased by them vide sale deed dated 11.12.1975 from one Mrs. Maria Anuciacao Ormezinda Furtado. The Respondents have submitted that sometime in the year 1988 when land acquisition proceedings in respect of the portion of the said property were going on, it was discovered by them that one Malu Gaonkar of whom present petitioners are the legal heirs, had conspired with one Cristovam Furtado to collect from the Government, the compensation payable to the owner of the land. For the said purpose Cristovam Furtado got his name recorded in survey records as owner of the suit property and got name of Malu Goankar entered in the said column as tenants. Respondents further submitted that said Cristovam Furtado and Malu Goankar very well knew that Malu Goankar had never cultivated any portion of the suit property and illegally got recorded himself as tenant of the said land and that Cristovam Furtado was never the owner of the said land. Therefore, the respondents have filed a civil suit against the petitioners for a declaration that the petitioners never cultivated the suit land as tenants and also for a direction that that entries in the survey records be quashed and set aside. The petitioners have denied the said contentions of the respondents by filing their written statement. They have submitted that late Malu Gonkar and late Shankar Gonkar were brothers and were jointly cultivating the suit property as tenants. They have taken a preliminary objection as regards the jurisdiction of the Civil Court to try and entertain the present suit contending that the issue of tenancy cannot be decided by a Civil Court. 3. During the pendency of the suit, the respondents, on 19.1.2010, filed one application, under Order 6 rule 17 read with Section 151 of C.P.C. for grant of permission to amend their pleadings. The said application was contested by the petitioners. 3. During the pendency of the suit, the respondents, on 19.1.2010, filed one application, under Order 6 rule 17 read with Section 151 of C.P.C. for grant of permission to amend their pleadings. The said application was contested by the petitioners. After hearing both the sides, learned Civil Judge by his order passed on 20.3.2010 partly allowed the application for amendment of the plaint. While the learned Civil Judge refused the leave to amend the plaint by deleting the word “negative” in the subtitle to the suit and to incorporate all those pleadings which had the effect of deleting any reference to the petitioners as the tenants, the learned Civil Judge allowed rest of the proposed amendments reasoning that those amendments would only enable the respondents to bring on record additional facts in support of their pleadings. 4. Subsequently, thereafter, the preliminary objection taken by the petitioners as regards lack of jurisdiction of the Civil Court to entertain and try this suit was decided by the learned Civil Judge by his order passed on 31.7.2012. He rejected the application. Petitioners preferred a Writ Petition bearing No.410/2013 against that order which came to be disposed of on merits by learned Single Judge of this Court on 14.8.2013. It was observed that it would be appropriate and in the interest of justice to keep the issue with regard to the jurisdiction of the Court as raised in the suit open to be considered by the learned Judge at the time of final disposal of the suit on merits. It was also observed that the learned Judge of the Civil Court would not be influenced by any of the observations made in the order against which Writ Petition was filed while considering the aspect as regards lack of jurisdiction of the Civil Court to try the suit. 5. Thereafter, the respondents filed another application dated 20.8.2013 under Order 6 Rule 17 read with Section 151 of CPC seeking amendment of the plaint. The application was opposed by the petitioners on the ground that the proposed amendments would introduce entirely a new case. This application was filed at a time when the evidence recording had commenced. 6. Learned Civil Judge, after hearing both the sides allowed the amendment application in its entirety by the order passed on 30.10.2013. It is this order which has been challenged in the present Writ Petition. 7. This application was filed at a time when the evidence recording had commenced. 6. Learned Civil Judge, after hearing both the sides allowed the amendment application in its entirety by the order passed on 30.10.2013. It is this order which has been challenged in the present Writ Petition. 7. I have heard Shri Ganesh Naik, learned counsel for the petitioners and Mr. Gilman Fernandes party in person for the respondents. 8. With their assistance, I have carefully gone through the impugned order and the paper book of this petition. The short question that arises in this Writ Petition is:- Whether discretion exercised by the learned Civil Judge in allowing the application for amendment of pleadings filed under Order 6 Rule 17 read with Section 151 of the CPC is arbitrary and illegal? 9. The first contention of learned counsel for the petitioners is that even though power to allow the amendment of pleadings at any stage of the proceedings is undisputed, but if the amendment is sought after the commencement of trial of the suit, the power can be exercised to allow the amendment only subject to limitations in the proviso introduced to Rule 17 Order 6 of CPC after the amendments made to the CPC, 1908 by CPC (Act 22 of 2002) w.e.f. 1.7.2002. He has invited my attention to the condition under the proviso to Rule 17, according to which no amendment sought after the trial has commenced can be allowed by the Court, unless, it is shown by the parties that inspite of due diligence it could not have raised the same before the commencement of the trial. He submits that since the trial of the suit has already commenced, with settlement of issues and commencement of evidence of respondents /plaintiffs, and there being nothing on record to show that the proposed amendments could not have been made earlier by the respondents inspite of due diligence on their part, the trial Court should not have allowed the amendment application. He also submits that these amendments seek to change the nature of the suit and are against the directions given by the High Court on 14.8.2013 in Writ Petition No. 410/2013. 10. He also submits that these amendments seek to change the nature of the suit and are against the directions given by the High Court on 14.8.2013 in Writ Petition No. 410/2013. 10. On the other hand, the respondents have submitted that even though the trial of the suit has commenced, a perusal of the proposed amendments as mentioned in the amendment application would show that they were something which could not have been raised in the suit earlier and were the result of subsequent developments in the nature of acquiring of the knowledge by the respondents about the position of law. Therefore, according to them, amendments sought by them were well within the limits set-out under Order 6 Rule17 of the CPC and, as such, the impugned order cannot be questioned on this ground. They also contend that since, it was never their case that petitioners were their tenants, amendments made would not change the nature of the case and would not go against the order of the High Court. 11. Considering the rival arguments, it would be convenient to refer to Rule 17 of Order 6 which reads thus:- 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 question in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court conies to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 12. It is clear from the proviso that once the trial has commenced, no application for amendments can be allowed except when the Court is of the opinion that inspite of due diligence, pleadings could not have been raised before commencement of the trial. The proviso curtails absolute discretion of the Court to allow the amendments at any stage and restricts the same to only one condition of inability of the parties to raise the pleadings before the commencement of the trial inspite of due diligence. The proviso curtails absolute discretion of the Court to allow the amendments at any stage and restricts the same to only one condition of inability of the parties to raise the pleadings before the commencement of the trial inspite of due diligence. This provision introduced after the amendment Act 22 of the 2002 has been held to be valid and legal by Hon’ble Supreme Court in the case of Salem Advocates Bar Association Vs. Union of India, 2005(5) ALL MR (SC) 876, referred to me by learned Counsel for the petitioners. 13. In this case, there is no dispute about the fact that the amendment application was filed by the respondents after the commencement of the trial. Therefore, it is to be seen whether the proposed amendment could have been allowed on the touchstone of the condition laid down in proviso to Rule 17 Order 6 of CPC. 14. A bare perusal of the amendment application dated 20.8.2013 discloses that the proposed amendments could have been made by the respondents before the commencement of the trial. By these amendments the respondents have sought to delete the words such as “as his tenant”, “as tenant”, “never being tenant”, “are not tenants” appearing in paragraphs mentioned in the amendment application and substitute them with such expressions as “in fiscal survey records”, 'no right whatsoever” and “have no right whatsoever” at the relevant places in the plaint. The proposed amendments also seek to introduce additional prayer clause seeking injunction to restrain the petitioners (defendants), their servants, agents from entering or interfering with the suit property in any manner. These pleadings were always available to be made by the respondents even when the suit was brought by them against the petitioners. The respondents have not shown as to how these pleadings could not be raised before commencement of trial, with all diligence at their command. Therefore, they do not clear the test of proviso to Rule 17, Order 6 and, as such, should not have been allowed. 15. There is another aspect which is worth mentioning. The respondents earlier made an attempt to raise these pleadings in almost similar form and expression when they filed an application for amendment of pleadings under Order 6 Rule 17 of CPC on 19.1.2010. 15. There is another aspect which is worth mentioning. The respondents earlier made an attempt to raise these pleadings in almost similar form and expression when they filed an application for amendment of pleadings under Order 6 Rule 17 of CPC on 19.1.2010. In that application also, the respondents sought leave of the Court to delete the words “tenant” and also delete prayer clause (a) and substitute the same by another prayer clause. There were other pleadings which were sought to be raised then by the respondents. While other pleadings were allowed to be incorporated in the plaint, the pleadings which had the effect of deleting any reference to petitioners as tenants were disallowed by the trial court by its order passed on 20.3.2010. 16. By the present amendment application, the respondents have only tried to introduce the same pleadings by using different words and expressions. Attempt so made by the respondents amounts to circumventing the order passed by the Civil Court earlier on 20.3.2010. 17. Then, there is also a question as to whether the proposed amendments would lead to changing the nature of the suit as originally filed by the respondents. The impugned order discloses that in the opinion of the learned Civil Judge proposed amendments were only clarificatory in nature and would not change the nature of the suit nor would introduce any new case. It appears that learned Civil Judge has only considered the effect of proposed amendment at clause (e) in paragraph 4 and has not at all considered the other proposed amendments while making these observations. Clause (e) amendment may be clarificatory in nature and only an effort to introduce an additional prayer clause. But, same is not true about the remaining proposed amendments vide clauses (a) to (d). It appears that the learned Civil Judge has only considered clause (e) amendment and allowed the application. Result, however, is that all the other amendments were also allowed, even though they were those amendments which were earlier sought to be introduced and were rejected by the same Court on the ground that they had the tendency to change the nature of the suit. As a matter of fact, they do have such a tendency. Result, however, is that all the other amendments were also allowed, even though they were those amendments which were earlier sought to be introduced and were rejected by the same Court on the ground that they had the tendency to change the nature of the suit. As a matter of fact, they do have such a tendency. But, the learned Civil Judge has ignored his own order passed in the matter and has, by allowing the subsequent application for similar amendments, reviewed his own earlier order on merits, which is not permissible in law. 18. It also appears that learned Civil Judge has turned oblivious to the specific directions of this Court order passed on 14.8.2013 in Writ Petition No.410 of 2013 wherein issue of lack of jurisdiction of the Civil Court to determine the question of tenancy has been kept open to be decided on merits by the Court of Civil Judge at the time of final disposal of the suit. By allowing the deletion of any reference to the petitioners as tenants, learned Civil Judge has effectively allowed the respondents to shift the very basis of their case thereby rendering directions of this Court almost as infructuous. 19. For all these reasons, I find merit in the contentions raised before me on behalf of the petitioners and no substance in the arguments of the party in person for the respondents. 20. In the circumstances, I find that discretion exercised by the learned Civil Judge in allowing the application is arbitrary and illegal and the impugned order cannot be allowed to sustain. Writ Petition deserves to be allowed. The question is answered accordingly. 21. The Writ Petition is allowed and the impugned order dated 31.10.2003 passed by the learned Civil Judge, Junior Division, Margao, Goa in Regular Civil Suit No.88/2009/F is hereby quashed and set aside. Amendment application dated 20.8.2013 is rejected. 22. Rule is made absolute in above terms. Parties to bear their own costs. Writ Petition allowed.