JUDGMENT : This is a defendants’ petition under Article 227 of the Constitution challenging the order, granting an amendment to the plaint by the Appellate Court. 2. Sadavriksha, a native of Village Digra Somali, Pargana and Tehsil Salempur, District Deoria, was twice married. He married Smt. Tetri, of whom two sons were born, Triloki and Kapildev. Smt. Tetri passed away in Sadavriksha's life time. After her demise, Sadavriksha married Smt. Lalita. Lakkhu, another son of Sadavriksha, was born of the wedlock of Sadavriksha and Smt. Lalita. Smt. Subhawati is Triloki's wife whereas Smt. Dhanmati is Kapildev's. It is between Smt. Lalita and Lakkhu on one hand and Smt. Subhawati, Smt. Dhanmati, Sadavriksha, Triloki and Kapildev on the other, that litigation erupted in the year 2005, when Sadavriksha, now deceased, executed a sale deed of his land in favour of Smt. Subhawati and Smt. Dhanmati. 3. Smt. Lalita and Lakkhu, who shall hereinafter be referred to as 'the plaintiffs' (unless the context requires individual reference), commenced action by instituting O.S. No. 333 of 2005 in the Court of the Civil Judge (Jr. Div.), Deoria, seeking cancellation of the sale deed and permanent prohibitory injunction. Smt. Subhawati, Smt. Dhanmati, the two vendees were arrayed as the defendants first set to the suit, Sadavriksha, the vendor was arrayed as the defendant second set and Triloki and Kapildev, husbands of the two vendees and sons of Sadavriksha, were arrayed as the defendants third set. 4. Now, Sadavriksha is no more, which leaves for the defendants, Smt. Subhawati, Smt. Dhanmati, Triloki and Kapildev. All of them together, shall hereinafter be called as 'the defendants, unless the context requires individual reference. 5. The plaintiffs' case briefly put is that they represent Sadavriksha's family after his second marriage to Smt. Lalita, who was married to Sadavriksha some 30 years antedating the commencement of action. Lakkhu was born to parties and 18 years old at the time of institution of the suit. For some time past, relations between the plaintiffs and Sadavriksha had come under strain in consequence whereof Smt. Lalita had brought proceedings against Sadavriksha for the grant of maintenance. A maintenance order had been passed against Sadavriksha. In compliance, Smt. Lalita was in receipt of maintenance. 6. For some time past, relations between the plaintiffs and Sadavriksha had come under strain in consequence whereof Smt. Lalita had brought proceedings against Sadavriksha for the grant of maintenance. A maintenance order had been passed against Sadavriksha. In compliance, Smt. Lalita was in receipt of maintenance. 6. Of late, the daughters-in-law of Sadavriksha had become the recipients of his favour and for the said reason, his sons Triloki and Kapildev together with their wives had colluded and ganged up to motivate and defraud Sadavriksha into executing a sale deed of his entire landed property in their favour. They succeeded in defrauding Sadavriksha into executing a registered sale deed dated 14.04.2005 in favour of Smt. Subhawati and Smt. Dhanmati. Upon coming to know of the execution of the sale deed aforesaid, the plaintiffs instituted the suit for cancellation and permanent injunction on the following grounds: (a) No sale consideration was paid to Sadavriksha at the time of execution of the sale deed and the consideration shown is a sham. (b) The suit property is the acquisition of Jokhu, Sadavriksha's ancestor, on account of which the plaintiffs have a one-third share therein. (c) The execution of the impugned sale deed by Sadavriksha has been secured through fraud, deceit and misrepresentation. (d) Sadavriksha had no right to alienate the property that was ancestral and the sale deed is ultra vires. (e) Succession to the property in dispute is governed by the Hindu Succession Act and the plaintiffs, therefore, have a right as co-sharers therein. (f) Sadavriksha had no legal necessity to execute the sale deed. (g) The impugned sale deed is not properly executed and verified. (h) The plaintiffs are in possession of the suit property in accordance with the family settlement. (i) The impugned sale deed is not Sadavriksha's mental act. 7. It is on these grounds that a decree for cancellation of the registered sale deed dated 14.02.2005 was sought with a prayer that the cancellation may be communicated to the Sub-Registrar. A further decree for permanent prohibitory injunction has been sought to the effect that the defendant be restrained from interfering in the peaceful possession of the plaintiffs over their half share in the suit property, threatening them or raising construction. The details of the suit property are given at the foot of the plaint, which are three agricultural plots, bearing Nos. The details of the suit property are given at the foot of the plaint, which are three agricultural plots, bearing Nos. 102, 381 and 233, with a total area of 0.704 hectare to the extent of a half share. 8. The defendants contested the suit pleading a case, in substance, that after Sadavriksha married Smt. Lalita, the two lived together, but Sadavriksha’s sons born of the first marriage, Triloki and Kapildev were estranged with their father. Sadavriksha executed a sale deed of his land that he owned in Delhi in favour of Lakkhu, his son born of Smt. Lalita. Triloki and Kapildev took up work as casual labourers and with their savings started a business of their own. After they turned young men, Triloki married Smt. Subhawati and Kapildev Smt. Dhanmati. At that point of time, Sadavriksha was in need of money for Smt. Lalita's daughter's wedding and medical expenses for the family. For the purpose, he had taken a loan that he could not repay. It was on that account that he sold off the suit property to his daughters-in-law, Smt. Subhawati and Smt. Dhanmati by the sale deed impugned. The plaintiffs had knowledge of the sale deed since the date it was executed and registered. The sale deed was executed by Sadavriksha with the consent of the plaintiffs, and, therefore, the suit is barred by estoppel. The impugned sale deed was executed by Sadavriksha in favour of Smt. Subhawati and Smt. Dhanmati after receipt of the due sale consideration, where no fraud or deceit is involved. Sadavriksha was a bhumidhar with transferable rights. He had a right to transfer his bhumidhari. The defendants are in possession of the suit property in accordance with the impugned sale deed, whereas the plaintiffs are not. The suit was, therefore, demanded to be dismissed. 9. Upon the pleadings of parties, the following issues were framed by the Trial Court (translated into English from Hindi): (i) Whether the impugned sale deed is liable to be cancelled on the grounds enumerated in the plaint? (ii) Whether the plaintiffs are in possession of the suit property as owners? (iii) Whether the suit is bad for non-joinder? (iv) Whether the suit is undervalued? (v) Whether the court-fee paid is insufficient? (vi) To what relief is the plaintiffs entitled? 10. Parties led oral and documentary evidence in support of their case, which need not be recapitulated here. (ii) Whether the plaintiffs are in possession of the suit property as owners? (iii) Whether the suit is bad for non-joinder? (iv) Whether the suit is undervalued? (v) Whether the court-fee paid is insufficient? (vi) To what relief is the plaintiffs entitled? 10. Parties led oral and documentary evidence in support of their case, which need not be recapitulated here. It is listed in the judgment of the Trial Court. 11. The Trial Court after a full trial dismissed the suit, holding that the impugned sale deed on the grounds raised was not liable to be cancelled. 12. Aggrieved by the Trial Court's decree, the plaintiffs appealed to the District Judge of Deoria. There, the appeal was registered on the file of the learned District Judge as Civil Appeal No. 3 of 2013. Some nine grounds were raised in the appeal. 13. Pending the appeal, the plaintiffs made an application for amendment before the Additional District Judge, Court No.5, Deoria, seeking amendment by adding the following pleas to the existing Paragraph No. 6 of the plaint: ^^D;ksafd vkjkth uEcj 12 jdck 0-247 gs0 o vkjkth uEcj 381 o jdck 0-0¼0½ gs0 ,oe~ vkjkth uEcj 233 jdck 0-356 gs0 es ge okfnuh ds 'olqj us 126 lh0vkj0ih0lh0 okn ua0&258@85 esa ikfjr vkns'k fnukad& 12-06-86 ds ikfjr gksus ds ckn mijksDr vkjkth esa ge okfnuh dks thfodk fuokZg gsrq ns fn;k rFkk ge okfnuh ,oe~ mldh iq=h mDr vkjkth;kr ls viuk thou fuokZg djrh pyh vk jgh gS mijksDr vkjkft;kr ij ge okfnuh ds Hkj.kiks"k.k dk Hkkj gSA mijksDr vkjkft;kr ij ge okfnuh dkfct nkf[ky pyh vk jgh gS cSukek fnukad &04-02-05 ;k ge okfnuh ds Hkj.kiks"k.k dks oafpr djus dh fu;r ls fd;k x;k cSuke fnukad&04-02-05 ek= blh vk/kkj ij [kkfjt gksus ;ksX; gSA** 14. In addition, the following relief numbered as 1(a) was sought to be added: ^^;g fd okfnuh ds yyhrk ds i{k esa Áfroknhx.k ds fo#) bl Ádkj dh fMØh ikfjr djds ;g ?kksf"kr dj fn;k tkos fd vkjkth uEcj 102 o jdck 0-247 gs0 o vkjkth uEcj 381 o jdck 0-101 gs0 ,oe vkjkth uEcj 233 o jdck 0-356 gs0 esa 1@2 Hkkx fLFkr ekStk fncM+k lksekyh rFkk ebZy ijxuk l0 e0 ftyk nsofj;k ejgeokfnuh ds Hkj.kiks"k.k dk ik= gSA** 15. The Appellate Court upon hearing the plaintiffs proceeded to allow the application seeking amendment to the plaint vide an order dated 12.12.2018. The Appellate Court upon hearing the plaintiffs proceeded to allow the application seeking amendment to the plaint vide an order dated 12.12.2018. The defendants are aggrieved by this order, which they have impugned through the instant petition. 16. Heard Mr. Rajesh Kumar Tiwari, learned Counsel for the defendants and Mr. Mahabir Yadav, Advocate holding brief of Mr. Ram Autar, learned Counsel for the plaintiffs. 17. Upon a perusal of the plaint and the amendment sought, what appears from the record is that the plaintiffs are seeking to introduce a new cause of action and a completely different relief to cloud the defendants' title that they have received under the impugned sale deed. The cancellation that the plaintiffs have sought is on numerous grounds, which include Sadavriksha being defrauded into executing the sale deed and the sale deed being one executed without right, or at least, in excess of the vendor’s right. The cause of action in the suit originally pleaded is one that impeaches the validity of the sale deed on grounds of fraud and misrepresentation said to be practiced by Triloki and Kapildev and their wives, Smt. Subhawati and Smt. Dhanmati, leading Sadavriksha to execute the conveyance or the lack of title authorizing him to alienate the entire suit property. There is not a whisper in the plaintiffs' case originally pleaded about the suit property being subject to a charge, under the maintenance order passed in favour of Smt. Lalita and against Sadavriksha. Now, through the amendment, the plaintiffs say that the suit property is subject to a charge for the amount of maintenance due from Sadavriksha under the maintenance order passed by the Court. It is for the said purpose that a declaration to the said effect, apart from amendments to the pleadings, has been sought. 18. Now, the fact that there was a maintenance order in existence, if that be so, was well within the knowledge of the plaintiffs when the suit was instituted and during the entire course of trial. At no stage of the trial, much less at the time of institution of the suit, the plea was taken or a case set up that the suit property to the extent of a half share share was subject to a charge for the amount due to Smt. Lalita, under the maintenance order passed against Sadavriksha. At no stage of the trial, much less at the time of institution of the suit, the plea was taken or a case set up that the suit property to the extent of a half share share was subject to a charge for the amount due to Smt. Lalita, under the maintenance order passed against Sadavriksha. This case was not introduced, assuming that it was omitted by oversight when the suit was instituted, early into the commencement of proceedings before the Trial Court. The amendment has been sought in appeal after the suit has been tried and decided. The amendment is not about a fact which can remotely be said to be not within the plaintiffs' knowledge, when the suit was instituted or trial pending. It is an amendment that has been sought to be belatedly introduced at the stage of appeal, with no justification at all for the delay also. It introduces a new case altogether, that is to say, the case of the suit property being subject to a charge arising out of the maintenance order in favour of Smt. Lalita, one of the two plaintiffs. By not pleading the right based on the alleged charge in the plaint or soon after the suit was instituted, the plaintiffs must be taken to have waived right, if at all they had one, based on the case of a charge. It cannot be permitted to be introduced at this belated stage, pleading a new case altogether, different from the one set up in the plaint. 19. The grounds on which an amendment can be refused, include a case where entirely a new case is set up, different from the one originally pleaded. 20. This apart, post amendment of Order VI Rule 17 CPC by Act No. 22 of 2002, the scope for amendment after trial, has been curtailed. The amended provisions of Order VI Rule 17 of the Code read: “17. 20. This apart, post amendment of Order VI Rule 17 CPC by Act No. 22 of 2002, the scope for amendment after trial, has been curtailed. The amended provisions of Order VI Rule 17 of the Code read: “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.” 21. Now, in the case of an amendment brought after commencement of trial by a party, the Code empowers the Court and obliges it as well to require the party applying for amendment to show that despite due diligence, the party could not have sought the amendment before the trial commenced. Here, is a case where the suit has run its full course and the plaintiffs have lost before the Court of first instance. They are now in appeal. By the amendment, they seek to bring in facts, a cause of action and relief, that were well within their knowledge throughout. This Court must remark that at the appellate stage, the Court cannot grant an amendment for the asking of a party. Where rights have already crystallized under one judgment, adding a new case or even facts by amendment, is unsettling a settled position, where rights have already been determined. Normally, the decision in an appeal is to be confined to the correctness of the judgment of the Trial Court on the pleaded case of parties and the evidence led. An amendment in appeal is a rarity. 22. Here, the Appellate Court has granted it by a casually worded order, which hardly addresses the requirement of Order VI Rule 17 CPC, post the 2002 Amendment. Reference, in this connection may be made to the decision of this Court in Rajendra Prasad v. Additional District Judge/Fast Track Court-I, Gonda and another, 2015 SCC OnLine All 8100, where it has been held: “17. Reference, in this connection may be made to the decision of this Court in Rajendra Prasad v. Additional District Judge/Fast Track Court-I, Gonda and another, 2015 SCC OnLine All 8100, where it has been held: “17. The Hon'ble Apex Court had an occasion to consider the matter in issue in Rajkumar Gurawara (dead) through LRs. v. S.K. Sarwagi and Co. Pvt. Ltd., [ 2008 (5) CTC 253 .] wherein, the Hon'ble Apex Court has held as follows: “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 able to satisfy the Court that in spite of due diligence could not raise the issue before the commencement of trial and the Court satisfies their explanation, amendment can be allowed even after commencement of the trial.” 18. Again in Vidyabai v. Padmalatha [ (2009) 2 SCC 409 .] the Hon'ble Apex Court has held as follows: “Order VI, Rule 17, C.P.C. is couched in a mandatory form. Unless the jurisdictional fact, as envisaged in the proviso to Order VI, Rule 17, C.P.C. 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. From the order passed by the Trial Judge, it is evident that the respondents had not been able to fulfil the said precondition.” 19. It is true that an amendment can be permitted to avoid, multiplicity of proceedings. But at the same time, Courts have held that an amendment cannot be allowed, if it causes prejudice to the right of the party against whom an amendment is sought for. It is true that an amendment can be permitted to avoid, multiplicity of proceedings. But at the same time, Courts have held that an amendment cannot be allowed, if it causes prejudice to the right of the party against whom an amendment is sought for. It is also a settled law, that the scope of the Appeal late Court is to test the correctness of the judgment under the appeal and any benefit or vested right, on account of declaration of the rights, inter se between the parties to the lis, by the Trial Court, cannot be allowed to be taken away by allowing an amendment to the pleadings, at the appellate stage, when the party seeking an amendment could have brought in such amendment, even at the time of the commencement of the trial. An amendment admitting to wipe out the pleadings and admissions of tine party, already considered by the Trial Court, for the purpose of arriving at a decision, in the suit, cannot be allowed to be substituted with a new case, at the appellate stage, which would certainly cause serious prejudice to the party, against whom the amendment is sought for. The effect of an admission in earlier pleading shall not be permitted to be taken away, by any proposed amendment.” 23. There is also another reason, which ought to have weighed with the Appellate Court in the opinion of this Court. It is true that normally amendments are to be granted, if sought promptly or even with some delay. An amendment, that is mala fide or not made in good faith, should never be granted. Here, the amendment, in the opinion of this Court, squarely falls into that category. There is not the slightest of reason for the plaintiffs to have waited until the stage of appeal to seek this amendment and introduce a case, of which they had knowledge all along. The said fact by itself betrays lack of bona fides on the plaintiffs' part. 24. So far as the impugned order goes, it has already been remarked that it is an entirely cryptic disposition of the amendment application and the Appellate Court hardly seems to have bestowed any consideration to the plea before it, which has been casually allowed. 25. In the circumstances, the impugned order in the considered opinion of this Court, cannot be sustained. 26. This petition succeeds and is allowed. 25. In the circumstances, the impugned order in the considered opinion of this Court, cannot be sustained. 26. This petition succeeds and is allowed. The impugned order dated 12.12.2018 passed by the Additional District Judge, Court No.5, Deoria in Civil Appeal No. 3 of 2013 is hereby set aside and the amendment application rejected. The Appellate Court shall now proceed with the hearing of the appeal expeditiously, fixing at least one date of hearing every week considering that the appeal is of the year 2013. The parties shall appear before the Appellate Court on 15.12.2022.