JUDGMENT : In this writ application, the plaintiff of C.S. No. 217 of 2003 as petitioner challenges the order dated 22.11.2006 passed by the learned Civil Judge (Senior Division), Baripada, rejecting the prayer for amendment of the plaint. 2. The amendment of the plaint in essence is sought to introduce the matter of reduction of the factum of adoption of plaintiff by husband of defendant nos. 1 and 2 and father of defendant nos. 3 and 4 on 1.03.1954. This amendment petition was filed on 14.11.2006 in the suit of the year 2003 and that too after examination of one witness from the side of the plaintiff. 3. The court below as it is seen has made strenuous exercise in going to examine at that stage the truthfulness of that factum of adoption sought to be further reinforced by seeking amendment as regards the said fact being reduced into writing. Ultimately, said document has been held to be doubtful one. For the purpose, the pleadings and the evidence so far tendered have been evaluated in great detail. The document if any has been held to be an in-genuine one, created for the purpose to provide support to the evidence of P.W.1 which otherwise and in the absence of said document may stand for being discarded thereby seriously affecting the plaintiff’s case. 4. Learned counsel for the petitioner submitted placing reliance in case of Baldev Singh and others vrs. Monohar Singh and another; 2006 (II) CLR (SC) 637 that the provision brought in by amendment of Code of Civil Procedure precluding the parties from bringing amendments in the pleadings after commencement of trial have to be understood in limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing argument. According to him, the trial court has not properly understood the ratio of the decision and has held that such amendment is not permissible in the midst of hearing. He further contended that the trial court ought not to have resorted to the exercise of going to examine the veracity of the said pleading with regard to the document at that stage and that according to him is not permissible in law which has rather touched the merit of the case which stands to be ultimately gone into for being decided. His contention is that even in case of rejection, such exercise ought not to have been undertaken. Thus, he submitted that when the amendment is not going to change the nature and character of the suit and it is also not causing any surprise to the defendants as factum of adoption was earlier pleaded, the trial court’s order rejecting the prayer for amendment is a flawed one and it would prevent the petitioner to necessary evidence for just a decision. 5. Learned counsel for the opposite parties refuting the submission of learned counsel for the petitioner as regards the stage of the suit being not impermissible for amendment further resisted the move for amendment centering round that document, just after examination of P.W.1 who for the first time spelt about it. According to him, grant of leave for such amendment on its face value and in view of the pleading and evidence on record is not permissible and it would encourage fraud and forgery which in fact has been sought to be prevented by said amended provision in the Code with a view to see that the party be not allowed to resort to plead falsehood and develop the pleading to suite the purpose from time to time looking at the development in course of hearing. According to him, by insertion of proviso casting upon the party to show that despite of due diligence, the said fact was not earlier known for being pleaded, such attempted mischief is intended to be nipped at the bud. 6. For proper appreciation of the matter and in order to properly address the submission as advanced, it is felt the need to have at first a close look at the provision of Order 6, Rule 17 of the Code as it stood prior to the amendment by Amendment Act, 2000 and now after. The only significant and substantial change made in the text of the above provision consists of addition of proviso. It is pertinent to state here that Rule – 17 was sought to be totally deleted as per the proposed Code of Civil Procedure (Amendment) Act 1999. The only significant and substantial change made in the text of the above provision consists of addition of proviso. It is pertinent to state here that Rule – 17 was sought to be totally deleted as per the proposed Code of Civil Procedure (Amendment) Act 1999. Then, it was sought to be reintroduced as the following:- “The court may allow either party to alter or amend his pleadings where it is satisfied that either new facts have come to existence subsequent to institution of the suit initiating the amendment or the amendment is inserted by changed on law”. This also did not finally find favour to be put into action and thus the Amendment Act, 2002, the old provision for amendment of pleadings was resurrected but with some restrictions. The proviso enacts the restriction but unlike the Bill of 2000, the rigour of the restriction has been considerably relaxed by introducing the concept of “commencement of trial” and exercise of “due diligence”. Whereas in the proposed Bill subsequent facts coming into existence only during pendency of the suit or change in law during such pendency were enabled to be introduced by the amendment. Thus the proviso, covers the facts in existence even before the pendency of the suit but which could not be in the knowledge of the party despite exercise of due diligence. The legislature while permitting those old facts’ introduction by amendment has put a rider as regards being not earlier aware despite of due diligence. These two concepts in the proviso now constitute the key to proper understanding of proviso. Thus, for amendment of the pleading it is not that only the stage of the suit i.e., commencement of hearing would decide the fate of such grant of leave, but even than the court has also to come to a conclusion that it was not possible inspite of due diligence. 7. The concept of due diligence has been introduced in two other provisions relating to additional evidence in suit and appeal as enshrined in Order – 18 Rule 17-A of the Code and order 41 rule 27 of the Code, by Civil Procedure Amendment Act 1976. However, by the latest amendment operational since 1st day of July 2002, rule 17-A of Order 18 of the Code has been deleted. However, by the latest amendment operational since 1st day of July 2002, rule 17-A of Order 18 of the Code has been deleted. This statutory provision in proviso (b) to sub-rule (2) of rule 4 of Order 47 of the Code also provides such a concept. Thus, the very intention behind introduction of this proviso not only describing the stage of the suit and creating a bar for the amendment but also in showing to the satisfaction that said matter could not be raised inspite of due diligence. So, when the trial of the suit has commenced, the amendment is permissible only when the party overcomes such due diligence part. Therefore, mere mention of the said phraseology in the application for leave to amendment in such cases, can’t work as magic wand to produce the desired result of an order of leave to amendment. The Code does not even define when can it be said that the trial has commenced. To apply the proviso in accordance with the intention of the legislature as is gatherable from the legislative history of the provisions, this new concept of ‘commencement of trial’ is certainly required to be understood in the light of statutory indication available in the Code. The message remains that the proviso is mandatory and it has to be so construed. Now as regards import of the words commencement we find a kind of definition in section 3(13) of the General Clause Act”, of course that is applicable to commencement of the statute but the definition shows along with the Dictionary meaning of the word that in essence commencement must be at a point of time as distinguished from a period of time. So, it has to be taken that the trial has to begin by a particular point of time or stage of the proceeding in a suit. We are concerned that for the amendments during trial, the view of the same remains as distinguished from pretrial amendment. When we generally see the provision of the Code, stages of the suit indicated under Orders 10, 11, 12 and 13 of the Code can be said be pre-trial proceedings. Framing of issues is governed under Order 14, Order 16 and 17 of the Code deal with summoning and attendance of witnesses and hearing of the suit and examination of witnesses, when Order 20 of the Code concerns with the judgment. Framing of issues is governed under Order 14, Order 16 and 17 of the Code deal with summoning and attendance of witnesses and hearing of the suit and examination of witnesses, when Order 20 of the Code concerns with the judgment. All these provisions being given cumulative reading clearly provides the statutory indication that the commencement of the trial of the suit is when the issues are framed and it ends on pronouncement of the judgment”. 8. The first decision where the appellate court spoke about the commencement of the trial is Kailash Vrs. Nankhu and others; (2005) 4 SCC 480 . The point arose in the trial of a election petition. It has been said—“At this point, the question arises when does the trial of election petition commence or what is the meaning to be assigned to the word “trial” in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording evidence. All the proceedings before that stage treated as proceeding preliminary to the trial and making the case ready for trial. Next case is of Rajesh Kumar Agrawal and others Vrs. K.K. Modi and others; (2006) 4 SCC 385 , it only mentions the amended provision of Order 6 Rule 17 of the Code at para 14 of the judgment but turns on the old law from the list of dates mentioned in the part 26 of the judgment and the proviso has been found not applicable to the case. Then has come the decision in case of Baldev Singh Vrs. Manhar Singh and others; (2006) 6 SCC 498 . The proviso of the Order 6 Rule 17 of the code has been dealt in para – 9 and 17 of the judgment. The date of institution of the suit, presentation of the written statement and the framing issues, if any, have not been mentioned. The prayer for amendment was rejected by the trial court as also the High Court. The ground for rejection has been enlisted in the para 11 of the judgment. Next dealing those in para 12 to 16, the Apex Court held that the courts below went wrong in rejecting the application. The prayer for amendment was rejected by the trial court as also the High Court. The ground for rejection has been enlisted in the para 11 of the judgment. Next dealing those in para 12 to 16, the Apex Court held that the courts below went wrong in rejecting the application. It may be mentioned here that none of the grounds of rejection dealt with by the Supreme Court related to the proviso of the Order 6 Rule 17 of the Code. In next para – 17, having stated the proviso, the Hon’ble Court noted that the parties had not filed their documentary evidence in support of their claim and the trial to have not yet commenced. Towards last it has been said:- “That apart the commencement of trial court as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must by understood in the limited sense as meaning final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments ……… ” 9. Next came the decision in case of Ajendra Prasadji N. Pande and another Vrs. Keshab Prakashji N. and others; (2006) 12 SCC 1 . Here the proviso to Order 6 Rule 17 of the Code fell for decision of the Apex Court. The Apex Court approved the decision in case of Kailash (supra) and held that the trial commences when the issues are framed and the suit is set down for recording of evidence. The relevant para is as under:- “54. It is stated that the date of settlement of issue is date of commencement of trial (Kailash Vrs. Nankhu and others). Either treating the date of settlement of issues as the date of commencement of the trial or treating the filing of affidavit which is treated as examination-in-chief as dated of commencement of trial, the matter will fall under Order 6 Rule 17. The defendant has therefore, to prove that inspite of due diligence, he could not have raised the matter before the commencement of the trial. Then again commenting on the averment of the application for the leave to amendment as regards the due diligence, the Apex Court have said:- “57. The defendant has therefore, to prove that inspite of due diligence, he could not have raised the matter before the commencement of the trial. Then again commenting on the averment of the application for the leave to amendment as regards the due diligence, the Apex Court have said:- “57. the above averment in our opinion does not satisfy the requirement of Order 6 Rule 17 without giving the particulars which would satisfy the requirement of law that the matters now sought to be introduced by amendment could not have been raised earlier instead of due diligence as already held by this court in Kailash v. Nankhu and others (supra). The trial is due to commence when the issues are settled and the case is set down for recording of evidence. ” In response to the submission as regards the word “shall” used in the proviso that whether it has to be interpreted as “shall” or “may” it has been held -“as rightly pointed by the learned senior Counsel any section should not be so interpreted with part of it becomes otiose and meaningless and very often a proviso itself is read as substantive provision, it has to be given full effect. So, here interpreting the word “shall” not as “shall” but “may” certainly makes the proviso altogether redundant”. In the said decision in case of Ajendra Prasad (supra), the judgment of Baladev Singh (supra) has been referred to. However, the decision in case of Baldev Singh (supra) has made no reference to the case of Kailash (supra), a larger bench decision. In case of Usha Balasaheb Swamy and others, Vrs. Kiran Appaso Swain and others; AIR 2007 SC 1663 though the proviso to Order 6 Rule 17 finds mention but it has been held to be inapplicable since the trial has not commenced. 10. In case of Vidya Bai and others Vrs. Padma Latha and others, (2009) 2 SCC 409 , all the above decisions one by one have been taken up for consideration. It has been held therein:- “19. It is the primal duty of the Court to decide as to whether such amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It is the primal duty of the Court to decide as to whether such amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. 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, court will have no jurisdiction at all to allow the amendment”. In that case, the amendment of written statement was sought for, when the suit was fixed for cross-examination of the witnesses who had filed an affidavit of their evidence in-chief; the trial court rejected the application. The contention was that there was no knowledge about the facts sought to be introduced by the amendment and then they could not gather the materials for drafting and information necessary for drafting a proper written statement. In the writ petition, the High Court had quashed the order of refusal of amendment and allowed the same on the ground that the valuable right cannot be curtailed in the absence of good ground. 11. Adverting to the facts of the case in hand, the prayer for amendment of the plaint has been filed after the cross-examination of petitioner’s witness no. 1. So the trial of the suit had already commenced. In the petition, the averments run that when on 10.11.2006, P.W. 1 stated about the written document of adoption, the learned counsel got astonished to hear about it from him and so he inquired the matter from the petitioner who made further inquiry from the witnesses and others and came to know that there was un-registered adoption deed. It is further stated that the execution of such documents was not within his knowledge, so he could not plead it. It is objected on the ground that the prayer is only to patch up the lacunae by creating a forged document and introducing the same in evidence and the amendment is prayed for as on proving such forged document, the same may not get due consideration for having not given the foundation in the pleading. 12. The plaintiff’s very case is based upon the claim of adoption. Necessary pleading is there with regard to the date etc. 12. The plaintiff’s very case is based upon the claim of adoption. Necessary pleading is there with regard to the date etc. The natural father of the plaintiff died shortly before the suit. The P.W. 1 first of all supported the plaintiff and only when he has stated about a document of adoption coming into being during; shortly thereafter the amendment is prayed for introducing the said fact that such a document existed. It is extremely hard to accept even for a moment that the plaintiff whose age is more than 50 years would remain ignorant about such document in respect of his own adoption for all these years and without making any inquiry before the presentation of the plaint or thereafter for a long time would not only come up after his own witness speaks out during cross-examination. Of course, the court below at that stage should not have gone to make a thread bare analysis of the pleading, evidence and document in rejecting the prayer for amendment, as such a discussion is likely have a negative impact at the ultimate or it may lead to carry an impression in the mind of the parties that what the trial court’s view is, which should be strictly avoided in dealing with such matters. But for that reason the ultimate order passed by the trial court cannot be said to be a flawed one. Thus, when the amendment has been brought after commencement of the trial of the suit and looking at the facts and circumstances of the case and the development till the filing of the petition for amendment when the due diligence part is wholly unacceptable, grant of leave for said amendment is not permissible. That apart, it may encourage creation of fabricated document which in my considered view is one of the basic reasons for introduction of the proviso to Order 6 rule 17 of the Code that when the parties are in litigating terms, the tendency remains to create evidence in support of respective cases, viewing the development during trial from time to time and in the process not only that the adjudication gets delayed but also the party who has approached the court to get his grievance redressed either as plaintiff or as defendant as the case may be, suffers in the long run. That has been duly taken care of by the legislature in order to prevent the mischief. And for that reason a cut off date being given for application of the provision of Order 6 Rule 17 of the Code i.e. up till the commencement of the trial, and at the same time so the partly is obligated to show that he had failed to do so despite of due diligence. This is how a balance has been struck to curb the mischief and the tendency to protract litigation in order to see early conclusion of the trial on one hand and due redressal of the sufferings of the justice seeker even taking care of his ignorance on the other. 13. For the aforesaid discussion and reasons, the trial court’s order in rejecting the amendment is found to in order and thus is not liable to be quashed. It is needless to mention that the detail discussions which have been made in the order by the trial court would have no impact in the mind of the trial court during the final adjudication of the suit, also any observation made herein above should not weigh in the mind of the trial court in any manner in deciding the suit on its own merit in accordance with law. 14. The writ application stands dismissed with cost of Rs. 2000 (Rupees two thousand only) to be paid by the petitioner to the O.Ps. Viewing the age of the suit, the trial court is directed to take up expeditious hearing and dispose of the same by the end of June 2015. The parties are directed to appear in the court below on 24.12.2014 to receive further instruction and co-operate with the trial.