JUDGMENT : K. RAMAKRISHNAN, J. 1. The petitioner/appellant in I.A. No. 920/2015 in A.S. No. 29/2011 of Sub Court, Sulthan Bathery has filed this petition challenging the order passed in that application under Article 227 of the Constitution of India. 2. The petitioner herein filed Ext.P1 suit as O.S. No. 156/2010 on the file of the Munsiff Court, Kalpetta against the respondents for permanent prohibitory injunction restraining the defendants, their men and agents from trespassing into plaint-B schedule road and causing any damage or making any alteration to the present nature and condition of the road and from making any obstruction or interference in any manner over the plaintiff’s right and user of the plaint B schedule road. It is alleged in Ext.P1 that plaint A schedule property belongs to the plaintiff as per Sale Deed No. 784/2007 of SRO Vythiri. Originally it belonged to one Pulikkal Pathumma by virture of Lease Deed No. 237/1958 and thereafter it was devolved on Aandassery Karthiyani on the basis of Sale Deed No. 1450/1966. The said Kathiyani transferred the property to one Venugopalan, Pankajakshy and Paru Amma as per Document No. 1242/1970. While so, Paru Amma died and her right devolved on Venugopalan. The said Venugopalan transferred a portion of the property to his son Gireesh Kumar as per Sale Deed No. 1215/2001 and thereafter Venugopalan, Pankajakshy and Gireesh Kumar jointly executed Sale Deed No. 784/2007 in respect of the plaint A schedule property in favour of the petitioner and thereby he became the absolute owner of A schedule property. Plaint B schedule property is a mud road beginning from Lakkidi Rest House Public Road and proceeding through the PWD property and reaches plaint A schedule property. It is having a width of 4.5 meters and length of 75 meters. Except this road, there is no other access to the plaint A schedule property. According to the petitioner, it has been in open, peaceful, express and uninterrupted use as of right by way of easement for more than 30 years from 1966 to 1996, thereby the plaintiff’s predecessor acquired a right to use plaint B schedule road by way of easement by prescription. Thereafter the plaintiff purchased the plaint A schedule property and he has been using the same openly, peacefully and uninterruptedly as of right as easement to reach plaint A schedule property. Thereafter the plaintiff purchased the plaint A schedule property and he has been using the same openly, peacefully and uninterruptedly as of right as easement to reach plaint A schedule property. Plaint B schedule property is entering plaint A schedule property at its south eastern corner and thereafter the road proceeds through the southern side of the property and leads to the residential house therein. When the second defendant tired to obstruct the same, the plaintiff filed W.P. (C) No. 14330/2010 before this court and this court disposed of the same leaving open the right of the petitioner to approach the civil court for necessary reliefs. It was how Ext.P1 suit was filed. 3. The defendants entered appearance and filed written statement denying the right of the plaintiff to use plaint B schedule property and also the claim made by the plaintiff through the alleged plaint B schedule road. According to them, there was no such pathway in existence as claimed by the plaintiff and it was created after the plaintiff purchased the property and when it was obstructed, the present suit has been field with an ulterior motive. They prayed for dismissal of the suit. A commission was taken out and the commissioner filed the report with sketch plan. 4. PWs. 1 to 3 were examined and Exts.A1 to A6 were marked on the side of the plaintiff. Dws1 and 2 were examined and Exts.B1 to B4 were marked on the side of the respondents and Exts.C1 and C2 were also marked. After considering the evidence on record, the trial court found that the plaintiff has failed to prove the identity of plaint B schedule road and also found that necessary ingredients to get the relief of easement by prescription has not been established and dismissed the suit by judgment dated 29.1.2011. Thereafter the petitioner filed A.S. No. 29/2011 before the Sub Court, Vythiri. 5. During the pendency of the appeal, the petitioner filed I.A. No. 920/2015 for amendment of the plaint evidenced by Ext.P2 seeking the following amendments. Thereafter the petitioner filed A.S. No. 29/2011 before the Sub Court, Vythiri. 5. During the pendency of the appeal, the petitioner filed I.A. No. 920/2015 for amendment of the plaint evidenced by Ext.P2 seeking the following amendments. In page 2 paragraph 4 add the following words “as an access to plaint A schedule property from Lakkidi Rest House Public Road” immediately after the existing words as matter of right, (2) the existing digits 1996 in the 8th line of paragraph 4 may be deleted and added 2007 in its place to read as “from 1996 to 2007” (3) add the following words “to take motor vehicles to plaint A schedule property whenever required” as a continuation as the last line of paragraph 4 to read “as using the plaint B schedule road as the vehicle access to take the motor vehicles to plaint A schedule whenever required.” It is mentioned in the petition that the plaintiff’s predecessor had been in continuous use of the plaint B schedule road from 1996 to 2007 during the period in which the plaint A schedule property has been in the possession of plaintiff's predecessors. There is no indication in the pleadings about the discontinuation of the use of the plaint B schedule road from 1996 to 2007. The year 1996 stated in the plaint in page 2 of paragraph 4 is mistakenly incorporated but it ought to have been 2007. It is also mentioned that in spite of due diligence, he could not have raised the matter before the lower court before the commencement of the trial and the disposal of the suit. So it is highly necessary to seek permission of the court to make the amendment. That was the reason for filing the application. 6. The respondents filed Ext.P3 objection denying the allegations. It is also mentioned in the objection that the court below after evidence dismissed the suit and the petitioner is not entitled to amend the plaint so as to fill up the lacuna in the pleadings in the court below and if such an amendment is allowed at this stage, it will cause prejudice to them. So they prayed for dismissal of the application. So they prayed for dismissal of the application. The court below after considering the submissions, dismissed the same by Ext.P4 order stating that it was highly belated and the period from 1966 to 1996 itself was added as per order in I.A. No. 1103/2010 before the court below. So it cannot be said that he was not aware of the same and it cannot be said that there was due diligence on the part of the petitioner in not carrying out the amendment earlier and dismissed the application. Dissatisfied with the same, the present petition has been filed. 7. Heard Sri. Gracious Kuriakose, learned senior counsel appearing for the petitioner and Sri. Johnson, senior Government pleader appearing for the respondents. 8. Learned senior counsel appearing for the petitioner submitted that there was some omission to mention about the continued user of the pathway from 1996 to 2007 and it is only a clarification sought to be incorporated in the plaint which cannot be said to be incorporating a new case or a new cause of action. Further, the evidence will go to show that it was specifically mentioned that it is being used from 1966 till the date of filing of the suit by the predecessors of the plaintiff and thereafter by the plaintiff continuously. So the court below should not have dismissed the application. He had relied on the decision reported in Gopinathan Pillai vs. Sumathykutty Amma and Others, 2015 (5) KHC 543 in support of his case. 9. On the other hand, learned Government Pleader appearing for the respondents submitted that the petitioner had earlier filed an application for amendment of the plaint during the trial stage by which the period of user was incorporated as 1966 to 1996. So it cannot be said that he was not aware of the lacuna in the pleadings at that time itself. It is thereafter the evidence was adduced and after the disposal of the case as against him, the appeal was filed in the year 2011 and application for amendment was filed only in the year 2015. So under such circumstances, in view of the bar under proviso to Order 6 Rule 17 of the Code of Civil Procedure, unless the conditions specified in the proviso is established by the petitioner, he is not entitled to get the pleadings amended at the stage of appeal. So under such circumstances, in view of the bar under proviso to Order 6 Rule 17 of the Code of Civil Procedure, unless the conditions specified in the proviso is established by the petitioner, he is not entitled to get the pleadings amended at the stage of appeal. So, according to him, the court below was perfectly justified in dismissing the application which does not warrant interference at the hands of this court under Article 227 of the Constitution of India. 10. It is an admitted fact that the petitioner as plaintiff filed Ext.P1 suit as O.S. No 156/2010 on the file of the Munsiff Court, Kalpetta seeking a decree for permanent prohibitory injunction restraining the defendants from obstructing user of plaint B schedule road by the plaintiff. It is alleged in the plaint itself that the property originally belonged to one Pulikkal Pathumma as per Lease Deed No. 237/1958 and thereafter it was obtained by one Aandassery Karthiyani as per Sale Deed No. 1450/1966, who in turn assigned the same to Venugopalan, Pankajakshy and Paru Amma as per Sale Deed No. 1242/1970. After the death of Paru Amma, her right devolved on her son Venugopalan, who had transferred a portion of the property to his son Gireesh Kumar as per Sale Deed No. 1215/2001. Thereafter all these persons namely Venugopalan, Pankajakshy and Gireesh Kumar executed Sale Deed No. 784/2007 in favour of the petitioner in respect of the plaint A schedule property. According to him, there is a mud road starting from Lakkidy Rest House Public Road through the property of the Public Works Department having a width of 4.5 meters and length of 75 meters reaches the plaint A schedule property which is shown as plaint B schedule to the plaint. In the original plaint, it was only mentioned that the plaintiff's predecessors have been in open, peaceful, express and uninterrupted use of plaint B schedule road as a matter of right by way of easement for more than 30 years and thereby the predecessor of the plaintiff acquired a right to use plaint B schedule road by way of easement by prescription. Thereafter the plaintiff had purchased plaint A schedule property and he had also been using the same in open, peaceful, express and uninterrupted user as a matter of right by way of easement. The period of user has not been mentioned at that time. Thereafter the plaintiff had purchased plaint A schedule property and he had also been using the same in open, peaceful, express and uninterrupted user as a matter of right by way of easement. The period of user has not been mentioned at that time. It is thereafter the petitioner filed I.A. No. 1103/2010 before the trial court for amendment of the plaint and incorporated the period as from 1966 to 1996. So it cannot be said that he was not aware of the fact that the period of user for more than 30 years uninterruptedly till the filing of the suit has to be mentioned in the plaint so as to claim the right of easement by prescription under Section 15 of the Easements Act. It is thereafter that the evidence was taken and after considering the evidence, the court below came to the conclusion that the plaintiff has failed to prove his right and dismissed the suit. 11. Dissatisfied with the same, he filed A.S. No. 29/2011 before the Sub Court, Sulthan Bathery. It is after 4 years of filing the appeal that he had filed the application for amendment to correct the period as 1996 to 2007 which application has been dismissed by the court below. He had not mentioned what prevented him to make this amendment even at the time when he made the earlier application for amendment as per the order in I.A. No. 1130/2010 when the case was pending before the trial court. There is no explanation forthcoming from the side of the plaintiff for the delay in filing the application for amendment as well. 12. By virtue of Amendment Act of 2002, Order 6 Rule 17 has been amended by the Parliament by incorporating a proviso which reads as follows: “The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such a 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 comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial.” 13. 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 the trial.” 13. The validity of this provision has been challenged before the Apex Court in Salem Advocates Bar Association, T.N. vs. Union of India, 2005 (6) SCC 344 and the Apex Court had upheld the amendment and held that: “Order 6 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 the court comes to the conclusion that in spite of due diligence the party could not have raised the matter before commencement of the trial. The proviso to some extent curtails absolute discretion to allow amendment at any stage. Now if an application is filed after the commencement of the 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.” 14. So it is clear from the decision that the amendment to Order 6 Rule 17 curtailing the right of the parties to amend the pleadings at any stage has been upheld by the Apex Court and it is also mentioned in the decision itself that unless the court is satisfied that in spite of due diligence such amendment could not have been sought earlier by the parties, the amendment should not be allowed after the commencement of the trial. This was done with an intention to avoid delay in disposal of the cases by the parties by amending the pleadings at the will and pleasure of the parties. 15. In the decision reported in Rajkumar Gurawara (Dead) Through LRs vs. S.K. Sarwagi and Co. (P) Ltd. 2008 (14) SCC 364 the scope of the amendment has been considered by the Apex Court. It has been held that: “Pre trial amendment could have been allowed liberally as the opposite party would not be prejudiced because he will have an opportunity of meeting the amendment sought to be made. (P) Ltd. 2008 (14) SCC 364 the scope of the amendment has been considered by the Apex Court. It has been held that: “Pre trial amendment could have been allowed liberally as the opposite party would not be prejudiced because he will have an opportunity of meeting the amendment sought to be made. However, in case of amendment after the commencement of the trial (as in the present case), particularly after completion of he evidence, the question of prejudice to the opposite party may arise and in such an event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso to Order 6 Rule 17 CPC. 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 and not otherwise. On the contrary, the first part of Order 6 Rule 17 CPC makes it abundantly clear that any stage of the proceedings, parties are free to alter or amend their pleadings on such terms as may be just and as may be necessary for the purpose of determining the real question in controversy.” 16. It is also held in the same decision that: It is settled law that the grant of application for amendment shall be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party and (iii) when allowing amendment, the application defeats the law of limitation.” 17. The same question has been considered by the Apex Court in the decision reported in Vidyabai and Others vs. Padmalatha and Another, 2009 (2) SCC 409 and it has been held that: “Order 6 R.17 CPC is couched in a mandatory form. Unless the jurisdictional fact, as envisaged in the proviso to Order 6 Rule 17 CPC is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz. Unless the jurisdictional fact, as envisaged in the proviso to Order 6 Rule 17 CPC is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence, the parties could not have raised the matter before the commencement of the trial.” 18. The power of the courts to amend the written statement was explained by the Apex Court in the decision reported in Baldev Singh and Others vs. Manohar Sigh and Another, 2006 (6) SCC 498 , where it has been held that: “A wide power and unfettered discretion has been conferred on the courts to allow amendment of pleadings, in such manner and on such terms as it appears to court to be just and proper.” 19. But this decision was distinguished in a subsequent decision of the Apex Court in the decision reported in Vidyabai and Others vs. Padmalatha and Another, 2009 (2) SCC 409 . The same view has been reiterated in the decision reported in Ajendraprasadji N. Pandey vs. Swami Keshavprakeshdasji N. 2006 (12) SCC 1 where after considering all the decisions on the subject and also the purpose of amendment as considered in Salem Advocate Bar Association's case, it has been held that: “Under the proviso, no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before commencement of trial. It is submitted that, after the trial of case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order 6 Rule 17 was due to the recommendation of the Law Commission since Order (sic Rule) 17, as it existed prior to the amendment, was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the Amending Act, 1999, deleting Rule 17 from the Code. That to shorten the litigation and speed up disposal of suits, amendment was made by the Amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of courts and, therefore, by the Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recognizing the power of the court to grant amendment, however with certain limitation which is contained in the new proviso added to the rule.” 20. It is true that in the decision reported in B.K. Narayana Pillai vs. Parameswaran Pillai and Another, AIR 2000 SC 614 it has been that: “No amendment should be allowed which defeats legal right accruing to the opposite party on account of lapse of time. The proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. Mere fact of delay in filing application cannot be made a ground for rejection where the other party can be compensated by costs.” 21. In the decision reported in State Bank of Hyderabad vs. Town Municipal Council, 2007 (1) SCC 765 it has been held that “the proviso was not applicable in view of section 16(2)(b) of Amendment Act of 2002 in respect of cases which were pending and filed before the amendment came into effect.” So it is clear from this decision that the amendment to Order 6 Rule 17 is only prospective in nature and that will be applicable to cases which were filed after 1.7.2002 when the amendment had come into effect. 22. In the decision reported in Shiv Gopal Sah alias Shiv Gopal Sahu vs. Sita Ram Saraugi, AIR 2007 SC 1478 it has been held that: “If the plaintiff is not able to explain the delay in filing the application, and if he is not able to establish his due diligence in not making the application for amendment before the commencement of the trial, he is not entitled to get the relief of amendment of plaint in view of the bar under proviso to Order 6 Rule 17 CPC.” 23. It is true that in the decision reported in Gopinathan Pillai vs. Sumathykutty Amma and Others, 2015 (5) KHC 543 this court has held that “even though a proviso has been added that will not affect the right of the appellate court to consider the question of amendment of plaint at the appellate stage.” But it has been further held in the same decision that it is true that the appellate court would ask the party applying for amendment as to why he did not make an application before the trial court and why he did not make an application before the trial commenced. The appellate court also ascertain whether the party applying for amendment could not have raised the matter before the commencement of the trial. All these parameters were being applied by the appellate court even before the introduction of the proviso to Rule 17 of Order 6 of CPC. The appellate courts have not lost powers and discretion after introduction of proviso to Rule 17 of Order 6 CPC. But in that case also the facts has not been discussed except stating that by virtue of the amendment, and introduction of the proviso, the power of the appellate court has not been taken away and in appropriate cases, the power can be exercised by the appellate court. Only to that extent, the dictum has been laid down regarding the power of the appellate court in considering the application for amendment of pleadings in the appellate stage. 24. The effect of proviso has been considered in N.S. Bindra's Interpretation of Statutes 8th edition. “Proviso:- A proviso is a proviso to the section. It assumes the tenor and colour of the substantive enactment. The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case.” 25. It is further observed in the book that: “The duty of the Court also must be to give to the proviso as far as possible a meaning so restricted as to bring it within the ambit and purview of the section itself. It is further observed in the book that: “The duty of the Court also must be to give to the proviso as far as possible a meaning so restricted as to bring it within the ambit and purview of the section itself. If a proviso is capable of a wider connotation and is also capable of a narrower connotation, and if the narrower connotation brings it within the purview of the section, then the Court must prefer the narrower connotation rather than the wider connotation of the two possible interpretations, the Court should prefer that one which brings it within the purview of the section. Court is not justified in construing proviso as enlarging the scope of the enactment when it can be fairly and properly construed without attributing it that effect.” It has been further observed in the book that: “A proviso is to be strictly construed and it has no existence apart from the provision which it is designed to limit or qualify. Generally speaking, a proviso is intended to restrain the enacting clause and except something which would have otherwise been within it or in some measure to modify the enacting cause. It is a rule of interpretation that the appropriate function of a proviso is to restrain or modify the enacting clause, or preceding matter and it should be confined to what precedes unless the intention that it shall apply to some other matter is apparent. It is, however, correct to say that a proviso should always be assumed to be and read as an exception. A substantive provision may also appear in the form of a proviso, and if the clear meaning of the proviso established that it is not a qualifying clause of the main provision, the Court is bound to give effect to it without straining to attribute to it the character of segment of the main enactment. The meaning of the proviso should be derived from its terms without any predilection that its subject matter is already covered by the main provision and that its object is to exclude something out of the main provision.” 26. It is further mentioned in the book that: “A proviso, therefore, is normally an exception of qualification carved out of a substantive provision; but it may in some cases be a substantive provision itself. It is further mentioned in the book that: “A proviso, therefore, is normally an exception of qualification carved out of a substantive provision; but it may in some cases be a substantive provision itself. In any view, whether a proviso is construed as restricting the main provision or as a substantive clause it cannot be divorced from the provision to which it is attached as a proviso. It must be construed harmoniously with the main enactment. The object of a proviso is to qualify or modify the scope and the ambit of the matter dealt with in the main section, the proviso may impose certain restrictions on the power to be exercised as conferred by the main section or it may in certain cases incorporate circumstances under which extended power may be exercised by the authority concerned. But under any circumstances, it is well established that the section and the proviso have to be read together and have to be construed harmoniously, such that neither is rendered ineffective or redundant.” 27. This was supported by the decisions reported in Dwarka Prasad vs. Dwarka Das Saraf, 1976 (1) SCC 128 and State of Rajasthan vs. Leela Jain, AIR 1965 SC 1296 . 28. Further in the decision reported in Vishesh Kumar vs. Shanti Prasad, 1980 (2) SCC 378 , it has been held that: “While interpreting the statute and applying mischief rule the construction should be adopted which would advance the legislature's object and suppress the mischief sought to be cured.” 29. In the decision reported in Rajesh Kumar Aggarwal and Others vs. K.K. Modi and Others, 2006 (4) SCC 385 , the Supreme Court has considered the scope of amendment to Order 6 Rule 17 and held as follows: “The object of Order 6 Rule 17 is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. The rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court. The rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court. The court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting mala-fide. The amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. The court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to sub-serve the ends of justice. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading, the second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. The real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties, if it is, the amendment will be allowed, if it is not, the amendment will be refused. While considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment.” 30. Further in the decision reported in Chander Kanta Bansal vs. Rajinder Singh Anand, 2008 (5) SCC 117 while construing the word due diligence occurring in proviso to Order 6 Rule 17, the Apex court has held as follows: “The words “due diligence” have not been defined in the Code of Civil Procedure, 1908. According to Oxford Dictionary (Edn.2006), the word “diligence” means careful and persistent application or effort. “Diligent” means careful and steady in application to one's work and duties, showing care and effort. According to Oxford Dictionary (Edn.2006), the word “diligence” means careful and persistent application or effort. “Diligent” means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (18th Edn.) “diligence” means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. “Due diligence” means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edn.13-A) “due diligence” in law, means doing everything reasonable, not everything possible. “Due diligence” means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs.” 31. Further in the decision reported in Eapen Antony vs. Joseph, 2009 (2) KLT 849 , a Single Judge of this court has held that: “The opening part of Order 6 Rule 17 of the Code of Civil Procedure provides that the court may, at any stage of the proceedings, allow either party to amend his pleadings. The proviso restricts the power of the Court to allow an application for amendment after the trial commenced, unless the conditions mentioned in the proviso are satisfied. If the exception to the first part of the proviso is satisfied and the court comes to the conclusion that in spite of due diligence, the party could not raise the matter before the commencement of the trial, it does not restrict the power of the court to allow the amendment even after closure of the evidence. In such a case, the main part of Rule 17 empowering the court to allow the amendment at any stage of the proceedings will come into operation. A stage after the closure of the evidence and before pronouncement of the judgment is also a stage at which the court may exercise the jurisdiction under Rule 17 of Order 6 of Code of Civil Procedure. Therefore, I do not think that the court lacks jurisdiction to allow amendment after the evidence is closed. A stage after the closure of the evidence and before pronouncement of the judgment is also a stage at which the court may exercise the jurisdiction under Rule 17 of Order 6 of Code of Civil Procedure. Therefore, I do not think that the court lacks jurisdiction to allow amendment after the evidence is closed. If the court comes to a conclusion in favour of the party applying for amendment as provided in the proviso to Rule 17, the jurisdiction to allow the amendment would extend even to a stage after the commencement of the trial, conclusion of the evidence, commencement of arguments and even conclusion of arguments. The power to allow amendment can be exercised at any stage of the proceedings and it means, at any stage before the judgment is pronounced. That the court has the power to allow amendment of pleadings even after the closure of evidence, certainly does not mean that a party would have unrestricted rights to apply for amendment of the pleadings. Nor does it mean that the courts would allow such amendments unmindful of the consequences and the probable prejudice to the opposite party.” 32. It is clear from the above decisions that by virtue of introduction of proviso to Order 6 Rule 17, there is some restriction on the power of the court in allowing the application for amendment. The first part of the Rule gives unrestricted power to the court to allow amendment at any stage of proceedings if the court is satisfied that it is necessary for the proper adjudication of the case. But while introducing the proviso to the said rule, there is restriction cast on the courts of power of allowing amendment after commencement of trial and the court can exercise the power only if the court is satisfied that in spite of due diligence the party could not have applied for amendment. If the court is satisfied that in spite of due diligence the party could not have availed the opportunity to amend the pleadings, then even if the trial commenced, the court has got power to allow amendment if it does not cause any prejudice to the other side. If the court is satisfied that in spite of due diligence the party could not have availed the opportunity to amend the pleadings, then even if the trial commenced, the court has got power to allow amendment if it does not cause any prejudice to the other side. Even in such cases if prejudice is likely to cause or a new case or cause of action has to be introduced which is likely to affect the vested right on the party then court must be slow in allowing the application for amendment. With this principles in mind, the case in hand has to be considered. 33. In this case, the suit was filed by the plaintiff in the year 2010 for an injunction restraining the defendants from obstructing the user of paint B schedule road by the plaintiff on the allegation that the plaintiff as well as his predecessors have acquired the right of easement by prescription. When the suit was filed the period during which the way was used has not been mentioned but except stating that their predecessor has used the pathway for more than 30 years openly, peacefully and without any interruption as of right as easement and thereby acquired a right of easement by prescription. But subsequently by filing an application I.A. No. 1103/2010, the period of user has been introduced as between 1966 to 1996. It is on that basis that the evidence has been adduced and the suit was later dismissed by the court below on the premises that the plaintiff has failed to prove necessary ingredients of getting a right of easement by prescription and thereby he is not entitled to get the relief. It is thereafter that the appeal was filed in the year 2011. Even during the pendency of the appeal, the petitioner had filed an application for remitting the commissioner's report and that was dismissed. It is thereafter after four years of filing the appeal that the petitioner had filed the application for amendment of the plaint incorporating an amendment deleting the year 1996 and adding 2007 in that place so as to make it appear that from 1966 to 2007 the way has been used by the predecessor and thereafter it was continued by the plaintiff. But such an averment was not there in the earlier plaint and by virtue of subsequent amendment by order in I.A. No. 1103/2010 it was restricted for the period from 1966 to 1996. So under such circumstances, it cannot be said that the plaintiff could not have filed the application for amendment even during the trial stage prior to the commencement of the trial in spite of due diligence exercised by him as he has exercised the right of filing an application for amendment knowing the consequences of period not mentioned in the earlier plaint. Further the evidence was also adduced on the basis of the pleadings and favourable decision has been obtained by the defendants. If such an amendment has been allowed in order to fill up the lacuna in the pleadings and evidence on the part of the plaintiff on the basis of which findings have been arrived at by the court below against him, then it is likely to cause prejudice to the respondent, if such an amendment has been allowed at the appellate stage which cannot be compensated by awarding reasonable costs as well. So under such circumstances, the court below was perfectly justified in exercising the discretion of not allowing the application for amendment at the appellate stage applying the restrictions in the proviso to Order 6 Rule 17 introduced by the legislature by amending the Code of Civil Procedure in the year 2002 in order to avoid indiscriminate manner in which application for amendment is being made by the parties at their will and pleasure to avoid and delay the disposal of the cases. So it cannot be said that the court below had committed any illegality or impropriety in disallowing the application for amendment wrongly interpreting the proviso to Order 6 Rule 17 of the Code of Civil Procedure warranting interference of this court invoking the supervisory jurisdiction under Article 227 of the Constitution of India. So this court feels that there is no merit in the petition and the same is liable to be dismissed. In the result, the petition is dismissed. Interim order of stay granted is vacated. I.A. No. 1247/2016 is dismissed.