JUDGMENT : Manish Kumar Nigam, J. 1. Heard Sri Bhanu Bhushan Jauhari, learned counsel for the revisionist, Sri Ramendra Asthana, learned counsel for the respondents and perused the record. 2. This revision has been filed by the defendants/revisionists against the judgment and order dated 28.07.2023 passed by Civil Judge (Senior Division), Shahjahanpur rejecting the application Paper No. 56-Ka for amendment in written statement, moved by the defendants/revisionists. 3. Brief facts of the case are that the plaintiffs/respondents instituted Original Suit No. 75 of 2021 against the defendants/revisionists for permanent injunction restraining the defendants in the suit not to interfere with the property of the plaintiffs/respondents and also restraining the defendants from interfering with the construction of the wall by the plaintiffs/respondents. 4. Plaint allegations as mentioned in the plaint are that the plaintiff no. 1 is a partnership firm having its properties in village Bartara Tehsil Sadar District Saharanpur which has been described by letters v c l n ; j y d £ x p N t > ´] The defendant/revisionist nos. 1 & 2 were silent partners and had taken retirement from the firm and thereafter the plaintiffs/respondents became full owner of the property of firm. There was some dispute as to the accounts of the firm which was settled by Sri Sanjay Saxena (Chartered Accountant) who was appointed as sole arbitrator with consent of the parties by means of decision dated 14.11.2020. Defendants/revisionists were interfering with the possession of the plaintiffs/respondents in the suit by which they had no right and therefore, the present suit. 5. The suit was filed on 08.02.2021. From the perusal of the record, it appears that on 08.02.2021, the court below issued notices to the defendants/revisionists fixing 15.03.2021. On 02.04.2021, objections, written statement Paper No. 19-Ka and affidavit Paper No. 20-Ka was filed on behalf of defendants/revisionists through their counsel Sri Rakesh Kumar Mishra and next date fixed was 19.04.2021. On 03.09.2021, an application for amendment in the plaint was moved by the plaintiffs/respondents for addition of relief of declaration that the plaintiffs were owner of the property in dispute. The aforesaid application was allowed by the court by order dated 04.10.2021. On 30.11.2021, it was stated by counsel appearing for the defendants/revisionists that defendants/revisionists would not file any additional written statement. On 21.12.2021, issues were framed. The aforesaid application was allowed by the court by order dated 04.10.2021. On 30.11.2021, it was stated by counsel appearing for the defendants/revisionists that defendants/revisionists would not file any additional written statement. On 21.12.2021, issues were framed. An application Paper No. 33-C was moved by the defendants/respondents through counsel Sri Sazid Ali Khan, Advocate under Order 3 Rule 4 read with Section 151 C.P.C. with the allegation that the defendants/revisionists engaged Rakesh Kumar Mishra, Advocate. Sri Rakesh Kumar Mishra, Advocate had got signatures of defendants/revisionists on blank paper. The counsel never informed the defendants/revisionists that written statement or objection had to be filed on behalf of defendants/revisionists. The written statement and objections which had been filed on their behalf by Sri Rakesh Kumar Mishra, Advocate was never read over to the defendants/revisionists and nor the same were filed after informing the defendants/revisionists. The counsel also did not inform about the amendment application and of its own learned counsel made an endorsement that no additional written statement would be filed by the defendants/revisionists of which permission was never given by the defendants/revisionists to the counsel Sri Rakesh Kumar Mishra, Advocate. It was also stated in the aforesaid application that the defendants/revisionists had disengaged Sri Rakesh Kumar Mishra, Advocate as he had acted against the interest of the defendants/revisionists. It was further stated that Sri Rakesh Kumar Mishra had filed written statement in collusion with the plaintiffs. Thereafter, an application under Order 10 Rule 2 C.P.C. was moved by the plaintiffs/respondents. Again an application dated 13.07.2022 Paper No. 39-ga was filed by defendants/revisionists that the objections and written statement Paper No. 19-ga which were filed on 02.04.2021, there were no signatures of the defendants/revisionists upon the said written statement and the defendants/revisionists had no knowledge of the same. The written statement Paper No. 19-ga be rejected and the defendants/revisionists be permitted to file fresh written statement in the suit. The application filed by the plaintiffs/respondents under Order 10 Rule 2 C.P.C. was allowed by the court below by order dated 04.10.2022. Against the said order, the defendants/revisionists filed a revision with a delay condonation application before the District Judge, in which delay was condoned. Since, the valuation of the revision was more than pecuniary jurisdiction of the District Judge, the revisionists were advised to withdraw the same for presenting the same before the proper court and the revision was withdrawn on 02.05.2023. Since, the valuation of the revision was more than pecuniary jurisdiction of the District Judge, the revisionists were advised to withdraw the same for presenting the same before the proper court and the revision was withdrawn on 02.05.2023. On 04.07.2023, the defendants/revisionists filed an application for amendment in the written statement Paper No. 56-Ka and by the said application, the defendants/revisionists also filed a counter claim. The plaintiffs/respondents filed objection to the aforesaid amendment application. The trial court rejected amendment application Paper No. 56-Ka, hence, the present revision. 6. Contention of the learned counsel for the revisionists is that the trial court by the order impugned, held that since issues have been framed in the suit 21.12.2021 and the plaintiffs has filed his evidence on 28.04.2022, the counter claim filed by the defendants/ revisionists on 04.07.2023 cannot be allowed in view judgment of the Supreme Court in case of Ashok Kumar Kalra v. Wing Comd. Surendra Agnihotri and others reported in (2020) 2 SCC 394 . It has been further contended by the learned counsel for the revisionists that by means of application Paper No. 56-Ka, the defendants/revisionists has sought amendment in various paragraphs of the written statement as well as the defendants/revisionists has also had filed a counter claim. By the order impugned, the trial court had rejected the application Paper No. 56-Ka only on the ground that counter claim filed by the defendants/revisionists cannot be entertained as the same was filed after framing of issues and has not considered the amendment prayed for by the defendants/revisionists in various paragraphs of the written statement. The court below has failed to exercise its jurisdiction in not considering the application filed by the defendants/revisionists for amending the various paragraphs of the written statement. 7. It has been further contended by learned counsel for the revisionists that in case the court below has considered the amendment application of the revisionists for amending various paragraphs of the written statements and allowed the same, the fresh issues has to be framed in the light of amended paragraphs of the written statement and therefore, the finding by the court below that the counter-claim filed by defendants/revisionists cannot be entertained after framing of issues is also vitiated. 8. Per contra, learned counsel appearing for the plaintiffs/respondents contended that the court below has rightly rejected the application for amendment filed by the defendants/revisionists. 8. Per contra, learned counsel appearing for the plaintiffs/respondents contended that the court below has rightly rejected the application for amendment filed by the defendants/revisionists. It is further contended by the learned counsel for the plaintiffs/respondents that in view of the authoritative pronouncement of the Supreme Court in case of Ashok Kumar Kalra (Surpa) counter claim which has been filed by the defendants/revisionists after framing of issues cannot be entertained. It is next contended by the learned counsel for the plaintiffs/respondents, in view of the proviso to Rule 17 of Order 6 C.P.C., the amendment has rightly not been allowed by the court below in the present case as the hearing of the suit has commenced. It is further contended by learned counsel for the plaintiffs/respondents that proviso to Rule 17 of Order 6 C.P.C. is mandatory and the court below has not committed any illegality in rejecting the application for amendment. 9. In rebuttal, learned counsel for the defendants/revisionists contended that proviso to Rule 17 of Order 6 C.P.C. is not mandatory but discretionary and on sufficient cause shown by a party, amendment can be allowed at any stage of the suit. In the present case, the defendants/revisionists has explained the reasons which necessitated the filing of amendment in the written statement are mentioned in the application itself but the court below has not at all considered the amendment application of the defendants/revisionists for amendment in the written statement and has rejected it only on the ground that counter claim cannot be entertained. 10. Before considering the rival submissions made by the learned counsel for the parties, it would be relevant to look into the provisions of C.P.C. in this regard. 11. Rule 17 of Order VI C.P.C. provides for amendment in the pleadings which is quoted hereinbelow: “[17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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.]” 12. Rule 6-A of Order VIII C.P.C. provides for counter claim by defendants which is as follows: “[6-A. Counter-claim by defendant.- (1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not: Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the court. (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the court. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.” 13. The Supreme Court in case of Ashok Kumar Kalra (Supra) was considering the reference as made by order dated 10.09.2018 passed by two Judges Bench of Supreme Court. Paragraph no. 2 of the judgment in case of Ashok Kumar Kalra (Supra) is quoted as under: “2. The present reference placed before us arises out of the order dated 10.09.2018 passed by a two-Judge Bench of this Court, wherein clarification has been sought as to the interpretation of Order VIII Rule 6A of the Civil Procedure Code (hereinafter referred to as “the CPC”), regarding the filing of counter claim by a defendant in a suit. The reference order dated 10.09.2018 is extracted below: ………… The papers to be placed before the Hon’ble Chief Justice of India for constitution of a three-Judge Bench to look into the effect of our previous judgments as well as whether the language of Order VIII Rule 6A of the Civil Procedure Code is mandatory in nature.” The reference was answered by the Supreme Court in paragraph no. 21 & 22 of the Judgment in case of Ashok Kumar Kalra (Supra) which is quoted as under: “21. 21 & 22 of the Judgment in case of Ashok Kumar Kalra (Supra) which is quoted as under: “21. We sum up our findings, that Order VIII Rule 6A of the CPC does not put an embargo on filing the counter-claim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action. Having said so, this does not give absolute right to the defendant to file the counter-claim with substantive delay, even if the limitation period prescribed has not elapsed. The court has to take into consideration the outer limit for filing the counter-claim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counter-claim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive: i. Period of delay. ii. Prescribed limitation period for the cause of action pleaded. iii. Reason for the delay. iv. Defendant’s assertion of his right. v. Similarity of cause of action between the main suit and the counter-claim. vi. Cost of fresh litigation. vii. Injustice and abuse of process. viii. Prejudice to the opposite party. ix. and facts and circumstances of each case. x. In any case, not after framing of the issues. 22.We answer the reference accordingly. The instant Special Leave Petition may be placed before an appropriate Bench after obtaining orders from the Hon’ble Chief Justice of India, for considering the case on merits.” 14. No doubt, the Supreme Court in case of Ashok Kuma Kalra (Supra) has held that a counter claim under Order 8 Rule 6-A cannot be entertained after framing of issues. 15. So far as the contention of learned counsel for the defendants/revisionists that application Paper No. 56-Ka moved by the defendants/revisionists was a composite application wherein defendants had sought amendment in various paragraphs of the written statement as well as had also filed a counter claim but the court below had not at all considered the amendment sought by the defendants in various paragraphs of the written statement and had rejected the application only on the ground that counter claim could not be entertained after framing of issues in the suit. 16. 16. With the help of learned counsel for the parties, I have perused the order impugned from which it is clear that the trial court has held relying upon the judgment of the Supreme Court in case of Ashok Kumar Kalra (Supra) that the counter claim filed by the defendants cannot be entertained as issues has already been framed in the suit. Nothing has been said by the trial court in the order impugned as to the amendment sought by the defendants/revisionists in various paragraphs of the written statement and the application has been rejected in totality. 17. Learned counsel appearing for the plaintiffs/respondents could not deny this fact that the amendments sought by the defendants were not at all considered by the trial court while rejecting the application Paper No. 56-Ka but it has been contended by the learned counsel for the plaintiffs/respondents that since trial has commenced in the present case in view of the proviso to Rule 17 of Order 6 C.P.C., the court below has rightly not considered the amendment sought by the defendants/revisionists in various paragraphs of the written statement as proviso to Rule 17 C.P.C. is mandatory. 18. In case of Suraj Prakash Bhasin v. Smt. Raj Rani Bhasin and others reported in (1981) 3 SCC 652 , the Supreme Court held as under: “6. The liberal principles which guide the exercise of discretion in allowing amendments have been laid down in numerous decisions of this Court. Multiplicity of proceedings being avoided is one criterion. Amendments which do not totally alter the character of the action are readily granted while case is taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretense of amendment of pleadings. The Court must be guided by the rule of justice expressed by the Privy Council in Ma Shwe Mya v. Maung Po Hnaung AIR 1922 PC 249 (250-51), (see AIR Commentaries on C.P.C., 1908, 9th Edn., Vol. 2, pp 1283-84). The Court must be guided by the rule of justice expressed by the Privy Council in Ma Shwe Mya v. Maung Po Hnaung AIR 1922 PC 249 (250-51), (see AIR Commentaries on C.P.C., 1908, 9th Edn., Vol. 2, pp 1283-84). All rules of Court are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless, no power has yet been given to enable one distinct causs of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit. (para-6)” 19. In M/s. Ganesh Trading Company v. Moji Ram reported in (1978) 2 SCC 91 , the Supreme Court held as under: "it is clear from the foregoing summary of the main rules of pleadings and provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its Counsel is inefficient in setting out its case initially the short coming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued. The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. The defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be avowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which can not be compensated by costs. No amendment should be allowed which amounts to or relates in defeating s legal right accruing to the opposite part on account of lapse of time. The delay in Filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement. (SCC p. 93 para: 4) 20. In case of B. K. Narayan Pillai v. Parameshwaran Pillai and another reported in (2000) 1 SCC 712 , the Supreme Court held as under: “The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guideline laid down by various High Courts and this Court. It is true that the amendment cannot be clawed as a matter of right and under all circumstances, But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.(Para-3)” 21. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.(Para-3)” 21. In case of Chander Kanta Bansal v. Rajinder Singh Anand reported in (2008) 5 SCC 117 , the Supreme Court has held as under: “The proviso limits the power to allow amendment after the commencement of trial but grants discretion to the court to allow amendment if it feels that the party could not have raised the matter before the commencement of trial in spite of due diligence. It is true that the power to allow amendment should be liberally exercised. The liberal principles which guide the exercise of discretion in allowing the amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be granted, while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon the opposite party under pretence of amendment. (Para: 11) 15. As discussed above, though first part of Rule 17 makes it clear that amendment of pleadings is permitted at any stage of the proceeding, the proviso imposes certain restrictions. It makes it clear that after the commencement of trial, no application for amendment shall be allowed. However, if it is established that in spite of "due diligence" the party could not have raised the matter before the commencement of trial depending on the circumstances, the court is free to order such application. 22. Again case of Abdul Rehman and another v. Mohd. Ruldu and others reported in (2012) 11 SCC 341 , the Supreme Court has held as under: “It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them. The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. (Para: 10) The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that 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. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimize the litigation….”(Para: 11) 23. In case of Rajesh Kumar Aggarwal and others v. K. K. Modi and others reported in (2006) 4 SCC 385 , the Supreme Court had held as under: “This rule declares that 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. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The proviso enacts that no application for amendment should 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 for which amendment is sought before the commencement of the trial. (Para: 14) Order 6 Rule 17 consist 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.(Para: 16) 24. (Para: 14) Order 6 Rule 17 consist 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.(Para: 16) 24. This Court in case of Ram Asrey v. Gyan Babu and others reported in (2006) All.C.J. 1951 has held relying upon the judgment of the Supreme Court in case of Rajesh Kumar Aggarwal (Surpa) that all the amendments that are necessary for determining the real question in controversy, between the parties should be allowed. Further the proviso to order 6 Rule 17 C.P.C. cannot place in impediment in allowing the amendment application if, it was otherwise liable to be allowed. The amendment cannot be refused only on the ground that the amendment was filed after the commencement of trial. (para: 8) 25. Thus, from the discussion made above, it is clear that the object of Order 6 Rule 17 C.P.C. is that the court should try the merits of the case that come before them and consequently allow all amendments that may be necessary for determining the real question in controversy between the parties, provided that it does not cause injustice or prejudice to other side. The rule of amendment essentially the rule of justice, equity and good conscious. The proviso to Rule 17 Order 6 C.P.C. to some extent curtails absolute discretion to allow amendment at any stage but in case if it is shown by the party, seeking amendment that instead of due diligence it could not have been sought earlier, the same has to be considered by the trial court itself while considering an application for amendment. The main purpose of allowing the amendment is to minimise the litigation. Though, to some extent, proviso to Rule 17 Order 6 C.P.C. limits the scope of the amendment to pleadings but still vest enough power in Courts to deal with the unforeseen situations whenever they arise. Proviso to Rule 17 Order 6 C.P.C. is not a complete bar nor shuts out entertaining of any later application. The reason for adding proviso is to curtail delay and expedite the hearing of the cases but the same should not defeat the cause of justice which is paramount. 26. Proviso to Rule 17 Order 6 C.P.C. is not a complete bar nor shuts out entertaining of any later application. The reason for adding proviso is to curtail delay and expedite the hearing of the cases but the same should not defeat the cause of justice which is paramount. 26. In the present case, the court below has only considered the fact that the counter claim made by the defendants/revisionists cannot be entertained as the same has been filed after framing of issues and has totally overlooked to decide the other part of the application by which the amendment has been prayed by the defendants/revisionists in various paragraphs of the written statements. The reasons given by the defendants/revisionists in their application, for seeking such belated amendment has not at all considered by the trial court and in my view, the court below has failed to exercise its jurisdiction in snot considering the amendments sought by the defendant/revisionists in various paragraphs of the written statement. 27. So far as the contention of the defendants/revisionists that had the trial court considered the amendment sought by defendants/revisionists in their written statement and allowed the same, the issues had to be framed on the basis of amended pleadings. The court below had erred in law rejecting the counter claim filed by defendants/revisionists for the reason that issues had been framed ignoring the fact that those issues were framed on the basis of collusive pleadings between the plaintiff and counsel for defendants/revisionists Sri Rakesh Kumar Mishra, Advocate. At this stage, I am leaving this question open and not recording any finding on this issue as I am not considering the amendment application filed by the defendants/revisionists on merits. 28. However, it will be open for the defendants/revisionists to raise this plea before the trial court, if occasion so arise. 29. In view of the above, I am of the opinion that the trial court has failed to exercise its jurisdiction in passing the order impugned as it has not considered at all the amendments sought by the defendants/revisionists in various paragraphs of the written statement. 30. 29. In view of the above, I am of the opinion that the trial court has failed to exercise its jurisdiction in passing the order impugned as it has not considered at all the amendments sought by the defendants/revisionists in various paragraphs of the written statement. 30. Accordingly, the revision is allowed and order dated 28.07.2023 passed by Civil Judge (Senior Division), Shahjahanpur, is hereby set-aside and the matter is remanded to the Civil Judge (Senior Division), Shahjahanpur with a direction to decide the application for amendment Paper No. 56-Ka afresh, after hearing all the parties concerned, in accordance with law without being influenced by any of the observation made by this Court in this judgment.