ORDER : 1. The present petition is filed praying for the following reliefs: “(a) the Hon'ble Court may be pleased to quash and set aside the order dated 28.03.2022 passed by the 7ª Additional Senior Civil Judge, Surat below Exh.56 in Special Civil Suit No.396 of 2010 (Annexure-A); (b) Pending the hearing and final disposal of this petition, the Hon'ble Court may be pleased to stay further proceedings in Special Civil Suit No.396 of 2010; (c) Ad-interim relief in terms of prayer clause (b) hereinabove; (d) For Costs (e) For such other and further reliefs that the Hon'ble Court deems fit in the interest of justice” 2. Brief facts of the case are as under: 2.1 The Petitioners herein are the Original Defendants, whereas the Respondents herein are the Original Plaintiffs of Special Civil Suit No.396 of 2010. For the sake of convenience, the parties herein are referred to as they are arrayed in the suit proceedings. The suit proceedings pertain to the land bearing Revenue Survey No.264/2, admeasuring 6475 Sq. Meters of Village Katargam, Taluka Choryasi, District Surat (hereinafter referred to as "the Suit Land"). Special Civil Suit No.396 of 2010 was instituted on 17.08.2010 by the Respondents herein - Original Plaintiffs simpliciter seeking a declaration that the Kabja Receipt, Vechan Karar and Kulmukhatyarnamu dated 15.12.2000 and the subsequent sale deed dated 29.03.2007 (registered on 23.04.2008) conveying the land to the Defendants as null and void. The Defendants appeared in the suit and filed their written statement below Exh. 35, controverting the false and concocted case of the Plaintiffs and placed on record documents showing the longstanding use, occupation and possession of the Suit Land by the Defendants. The issues were framed by the Trial Court below Exh. 38 on 04.08.2016. The plaintiffs right to lead evidence has been closed. The suit currently is at the stage of Defendant's evidence. 2.2 Eight years after institution of the suit, the Plaintiffs filed the application below Exh.56 on 26.10.2018, seeking permission to amend the plaint and incorporate a prayer to recover possession. This application was filed on the purported ground that the prayer to recover possession was inadvertently left out. The Defendants filed their reply to oppose the said application on 24.09.2019, pointing out that the prayer for amending the plaint is misconceived in facts and untenable in law and is, therefore, liable to be rejected. This application was filed on the purported ground that the prayer to recover possession was inadvertently left out. The Defendants filed their reply to oppose the said application on 24.09.2019, pointing out that the prayer for amending the plaint is misconceived in facts and untenable in law and is, therefore, liable to be rejected. The impugned order is passed in the application below Exh.56. By the impugned order dated 28.03.2022, the Trial Court has allowed the application below Exh.56 and allowed the Respondents to amend the plaint in terms of the application. 2.3 Being aggrieved and dissatisfied with the order dated 28.03.2022 passed by the learned 7th Additional Senior Civil Judge, Surat below Exh.56 in Special Civil Suit No.396 of 2010, the Petitioners - Original Defendants have filed the present petition. 3. Heard learned Senior Advocate Mr. R.S. Sanjanwala with learned advocate Mr. Aadit R. Sanjanwala for the petitioners and learned advocate Mr. Karan Sanghani with learned advocate Mr. Meet D. Kakadia for the respective respondents. Perused the memo of the petition and also the affidavit-in-reply filed by the respondent No.4. 4. Learned Senior Advocate Mr. Sanjanwala submits that the suit is filed in the year 2010, issues are framed in the year 2016 and application for amendment is filed in the year 2018, which is apparently filed after the commencement of the trial and by referring to the provisions of Order VI Rule 17 of the Code of Civil Procedure (C.P.C.), 1908, more particularly, proviso of the Order VI Rule 17, learned Senior Advocate Mr. Sanjanwala submits that such application below Exh.56 is required to be rejected, which the trial Court has wrongly granted without giving cogent and convincing reasons. He has further submitted that the proviso of the Order VI Rule 17 is clear and unambiguous. The proviso categorically stipulates that no application for amendment shall be allowed after 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 trial Court. He has further submitted that the proviso of the Order VI Rule 17 is clear and unambiguous. The proviso categorically stipulates that no application for amendment shall be allowed after 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 trial Court. He has further submitted that the plaintiffs-respondents herein have failed to show that they have shown due diligence in proceeding with the matter and thereafter, after considering due diligence, the amendment is required to be granted and this aspect is not at all considered by the trial Court and therefore, he has submitted that the impugned order passed by the trial Court is perverse, illegal, improper and also arbitrary in the eye of law. He has further submitted that the unamended plaint, as it was originally filed, was barred by law and suit was also liable to be dismissed in view of the Section 34 of the Specific Relief Act, 1963. He has further submitted that the prayer to recover possession wholly changes the nature, purpose and character of the suit. The suit, as it was originally filed, was simplicitor for declaration to cancel the sale deeds, which, according to the plaintiffs, are forged and fabricated. No prayer for possession was sought at the time of institution of the suit and a suit for recovery of possession stands on a wholly different footing and has different requirements in law and therefore, he has submitted that the plea for amending the suit is barred by limitation as the defendants are in use, occupation and possession of the suit land at least since the date of sale deed i.e. 29.03.2007 and the cause of action for recovering possession accrued on the date when the defendants took over possession of the suit land. The limitation to file a suit for recovering possession lapsed on 29.03.2010. He has further submitted that in view of the judgment of the Hon’ble Apex Court in the case of Muni Lal Vs. Oriental Fire & General Insurance Co. Ltd. And Another reported in reported in (1996) 1 SCC 90 , the present application which is filed after commencement of the trial, is required to be rejected. He has further submitted that in view of the judgment of the Hon’ble Apex Court in the case of Muni Lal Vs. Oriental Fire & General Insurance Co. Ltd. And Another reported in reported in (1996) 1 SCC 90 , the present application which is filed after commencement of the trial, is required to be rejected. He, therefore, prays to interfere with the impugned order passed by the trial Court, as such order is per se illegal and required to be set aside by exercising powers of this Court conferred under Article 227 of the Constitution of India. 5. Per contra, learned advocate Mr. Karan Sanghani has submitted that in view of the contentions raised by the learned advocate for the petitioners, it clearly transpires from the para No.3 of the plaint that the pleadings to the effect that the defendants have grabbed the land and the suit is also filed for seeking decree directing the defendants to hand over vacant possession of the land. However, such consequential relief regarding the possession was inadvertently left out in the prayer clause of the plaint and upon realizing such bona fide and inadvertent mistake, the plaintiffs preferred an application below Exh.56 on 26.10.2018 under Order VI Rule 17 of the C.P.C. seeking amendment in the prayer clause. He has further submitted that the trial can be commenced when the affidavit in examination-in-chief is filed by the plaintiffs and therefore, merely framing of issues cannot be construed as commencement of trial. He has submitted that the prayers which are sought by way of amendment for recovering possession will not change the nature of the suit as necessary pleadings are already existing in other part of the plaint, but missing from the prayer clause and therefore, such amendment is required to be granted. He has further submitted that the limitation is required to be considered from the date of execution of the sale deed i.e. 29.03.2007 and the limitation should be considered for 12 years and if the suit is filed in the year 2010 and the application for amendment is filed in the year 2018, then the prayer is well within the period of limitation. He has submitted that even by making the averment in the written statement by the defendants – petitioners herein regarding the possession by denying that the defendants have not grabbed the land and the plaintiffs’ prayer for recovering possession is based on incorrect plaint, then it is to be seen that the defendants have also contended in the written statement that they are in possession since 1990 and plaintiffs assertion regarding wrongful possession need not be considered as 12 years have already expired. Therefore, he has submitted that in view of the above assertion made in the written statement, the defendants have accepted the factum of the suit also having been filed for recovery of the possession by denying the assertion of the plaintiffs regarding possession. He has further submitted that, otherwise also, no prejudice would be caused if the amendment is granted. Thereafter, the petitioners may get the opportunity to file further written statement and also put their case accordingly during the course of recording of evidence by examining and cross-examining the witnesses. He relied on the judgment of the Hon’ble Apex Court in the case of Abdul Rehman and Another Vs. Mohd. Ruldu and Others reported in (2012) 11 SCC 341 , more particularly, Para 11 of that judgment and he has also relied on the judgment of the Hon’ble Apex Court in the case of Pankaja and Another Vs. Yellappa (dead) by Lrs. and Others reported in (2004) 6 SCC 415 , more particularly, paras 17 and 18. He has submitted that in view of the above referred judgments, the present petition is required to be rejected as the trial Court has rightly allowed and now the amended plaint is also filed before the trial Court and suit is also proceeding accordingly. Therefore, he has submitted that no interference is called for and no case is made out to exercise power of this Court under Article 227 of the Constitution of India and therefore, he prays to dismiss the present petition. 6. I have heard the rival submissions made at the bar. The provisions of Order VI Rule 17 of the C.P.C., including the proviso is reproduced as under: “17. 6. I have heard the rival submissions made at the bar. The provisions of Order VI Rule 17 of the C.P.C., including the proviso is reproduced as under: “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.” 7. In view of the fact that the suit is filed in the year 2010, whereby, the averments in the plaint about the possession is made, however, the averments are not made in the prayer clause regarding the possession which is now sought to be added by way of filing application under Order VI Rule 17 of the C.P.C. The sale deed is executed in the year 2007 and the application for amendment is filed in the year 2018. Considering the fact that now the Hon’ble Apex Court has also considered such aspects in many matters and recently in the judgment of the Hon’ble Apex Court in the case of Life Insurance Corporation of India vs. Sanjeev Builders Private Limited reported in AIR 2022 SC 4256 , more particularly, in para 70, it is observed thus: “70. Our final conclusions may be summed up thus: (i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC. (iii) The prayer for amendment is to be allowed (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and (ii) to avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and (c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). (iv) A prayer for amendment is generally required to be allowed unless (i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, (ii) the amendment changes the nature of the suit, (iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence. (v) In dealing with a prayer for amendment of pleadings, the court should avoid a hyper technical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. (vi) Where the amendment would enable the court to pin- pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. (vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. (xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)” 8. Now, keeping this aspect in mind for the present case, the judgment which are cited at the bar by the learned advocates for the parties are required to be dealt with. Learned advocate for the petitioners has cited the judgment of the Hon’ble Apex Court in the case of Muni Lal Vs. Oriental Fire & General Insurance Co. Ltd. And Another reported in (1996) 1 SCC 90 , more particularly, paras 5 and 6, which are reproduced as under: “5. Admittedly, by the date of the application for amendment filed, the relief stood barred by limitation. The question, therefore, is whether the Court would be justified in granting amendment of the pleadings in such manner so as to defeat valuable right of defence of bar of limitation given to the defendant. Admittedly, by the date of the application for amendment filed, the relief stood barred by limitation. The question, therefore, is whether the Court would be justified in granting amendment of the pleadings in such manner so as to defeat valuable right of defence of bar of limitation given to the defendant. It is true that this Court in the case of Vineet Kumar v. Mangal Sain Wadhera reported in [ (1984) 3 SCC 352 (at page 360, in paragraph 16)] held that normally amendment is not allowed, if it changes the cause of action. But it is well recognized that where the amendment does not constitute the addition of a new cause of action, or raise a new case, but amounts to not more than adding to the facts already on record, the amendment would be allowed even after the statutory period of limitation. In that case, the question of limitation was not really in issue. The question was whether the tenant was liable to be ejected. The plea was that there was an exemption period of 10 years from the purview of the Rent Control Act, if pending proceedings 10 years' period has elapsed. On that ground a new right had arisen to the tenant to take advantage of the benefit of the provisions of the Rent Control Act. In these circumstances, this Court held that the bar of limitation does not really stand in the way of the tenant to grant relief. As stated earlier, the suit was not initially instituted as one for recovery of damages nor was it founded on the relief which might have been asked for but was not claimed. In Pusupuleti Venkateswarlu v. The Motor & General Traders [ (1975) 3 SCR 958 ) this Court dealing with the basis of cause of action and character of the right had held that "it is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceedings. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the is has come to Court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal (Emphasis supplied), it cannot blink at it or be blind to events which stultify or render inept the decreetal remedy. Equity justifies bending the rules of procedure, where no specific provision of fair-play is not violated, with a view to promote substantial justice subject, of course, to the absence of other disentitling factors or just circumstances (Emphasis supplied). Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the Trial Court." In other words, this Court laid emphasis that with a view to mould the relief a new fact can always be taken into account not merely by the trial court but even by the appellate court. Where the appeal is delayed even by necessary implication, the relief of amendment in that event cannot be given. In other words, to render substantial justice without causing injustice to the other party or violating fair- play, Court would be entitled to grant proper relief even at the stage of appellate forum. It is seen that the ratio of Jagdish Singh v. Natthu Singh [ AIR 1992 SC 1604 ] is also inapplicable to the facts of this case. That case relates to a suit instituted for specific performance but without abandoning the relief of specific performance alternate relief for damages was also sought for. This Court relying upon the proviso to sub-section (5) of Section 21 of the Specific Relief Act which expressly gives power to the Court to grant amendment of the pleadings at any stage of the proceeding, permitted amendment of the plaint seeking alternate relief. The ratio therein is clearly distinguishable and does not apply to the facts of this case. 6. On a consideration of this case in its proper perspective, we of the view that granting of amendment of plaint seeking to introduce alternative relief of mandatory injunction for payment of specified amount is bad in law. The alternative relief was available to be asked for when the suit was filed but not made. 6. On a consideration of this case in its proper perspective, we of the view that granting of amendment of plaint seeking to introduce alternative relief of mandatory injunction for payment of specified amount is bad in law. The alternative relief was available to be asked for when the suit was filed but not made. He cannot be permitted to amend the plaint after the suit was barred by limitation during the pendency of the proceeding in the appellate court or the second appellate court. Considered from this perspective, we are of the opinion that the District Court and the High Court were right in refusing the prayer of amendment of the suit and the courts below had not committed any error of law warranting interference.” 9. Learned advocate for the respondents cited the judgment in the case of Pankaja And Another vs. Yellappa (Dead) by Lrd. And Others reported in (2004) 6 SCC 415 , more particularly, para 5, 17 and 18, are reproduced as under: “5. In the written statement filed by the respondents, a contention was taken that a suit for injunction and possession without seeking a declaration of title was not maintainable. Written statement was filed on 17th September, 1994. On 27th of July, 2000 realizing that a prayer for declaration on the facts of the case was essential the appellants filed an application for amendment of the plaint under Order 6 Rule 17, CPC by adding the following prayers :- "(a)To declare that the Plaintiffs are the owners A1.B.M.N.N1.O1.O.L of the suit schedule property." 17. Factually in this case, in regard to the stand of the defendant that the declaration sought by the appellants is barred by limitation, there is dispute and it is not an admitted fact. Factually in this case, in regard to the stand of the defendant that the declaration sought by the appellants is barred by limitation, there is dispute and it is not an admitted fact. While the learned counsel for the defendant-respondents pleaded that under Entry 58 of the Schedule to the Limitation Act, the declaration sought for by the appellants in this case ought to have been done within 3 years when the right to sue first accrued, the appellant-plaintiff contends that the same does not fall under the said Entry but falls under Entry 64 or 65 of the said Schedule of the Limitation Act which provides for a limitation of 12 years, therefore, according to them the prayer for declaration of title is not barred by limitation, therefore, both the courts below have seriously erred in not considering this question before rejecting the prayer for amendment. In such a situation where there is a dispute as to the bar of limitation this Court in the case of Ragu Thilak D. John Vs. S. Rayappan & Ors. 2001(2) SCC 472 (supra) has held :- "The amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case. The plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for." 18. We think that the course adopted by this Court in Ragu Thilak D. John's case (supra) applies appropriately to the facts of this case. The courts below have proceeded on an assumption that the amendments sought for by the appellants is ipso facto barred by the law of limitation and amounts to introduction of different relief than what the plaintiff had asked for in the original plaint. We do not agree with the courts below that the amendments sought for by the plaintiff introduces a different relief so as to bar the grant of prayer for amendment, necessary factual basis has already been laid down in the plaint in regard to the title which, of course, was denied by the respondent in his written statement which will be an issue to be decided in a trial. Therefore, in the facts of this case, it will be incorrect to come to the conclusion that by the amendment the plaintiff will be introducing a different relief.” 10. Furthermore, the judgment which is cited at the bar, in the case of Abdul Rehman and Another Vs. Mohd. Ruldu and Others reported in (2012) 11 SCC 341 , para 11, reads as under: “11. The original provision was deleted by Amendment Act 46 of 1999, however, 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 the commencement of trial. 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 carlier. The object of the rule is that courts should try the merits of the case that come before them and should, a 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 minimise the litigation and the plea b that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel v. Gattu Mahesh and Rameshkumar Agarwal v. Rajmala Exports (P) Ltd. Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment.” 11. The Court has observed that the amendment can be allowed at any stage of the proceedings. Regarding the aspect of limitation, considering the judgment of the Hon’ble Apex Court in the case of Pankaja And Another (supra), the observations made in paras 17 and 18, reproduced earlier, clearly takes care of that aspect. The Court has observed that the amendment can be allowed at any stage of the proceedings. Regarding the aspect of limitation, considering the judgment of the Hon’ble Apex Court in the case of Pankaja And Another (supra), the observations made in paras 17 and 18, reproduced earlier, clearly takes care of that aspect. The Court can consider this aspect including the aspect of limitation at the time of final trial and therefore, considering the fact that the trial Court has taken possible view of the matter, by considering the totality of the facts and circumstances of the case and accordingly, the amendment came to be granted and now, the amended plaint has also been filed. This Court is of the view that the trial Court has used its discretion in an appropriate manner and in-consonance with law and considering the totality of the facts and circumstances of the case, I found no apparent illegality or infirmity in the findings given by the trial Court. Therefore, I am of the view that the amendment which is granted by the trial Court by way of allowing the impugned application, is required to be allowed, even in the interest of justice as the respondents-plaintiffs have already made necessary averments in the plaint and it cannot be said that such case is pleaded for the first time, of course, no specific prayer is made regarding the possession. 12. Considering all the aforesaid aspects, the opportunity is required to be granted to the plaintiffs – respondents herein to plead their case and thereafter, to lead necessary evidence. The defendants – petitioners herein would also get the proper opportunity to controvert the necessary pleadings and thereafter also, to lead necessary evidence. Therefore, I found that no serious prejudice would be caused to the present petitioners by the impugned order and they will get the proper opportunity to defend their case before the concerned trial Court. Otherwise also, the trial Court has not committed any error while passing the impugned order dated 28.03.2022 passed below Exh.56 in Special Civil Suit No.396 of 2010. Otherwise also, the trial Court has not committed any error while passing the impugned order dated 28.03.2022 passed below Exh.56 in Special Civil Suit No.396 of 2010. Therefore, considering the judgment of the Hon’ble Apex Court in case of Garments Craft vs. Prakash Chand Goel reported in (2022) 4 SCC 181 , I found that no case is made out to interfere with the impugned order passed by the trial Court by exercising powers of this Court under Article 227 of the Constitution of India. The present petition found meritless and the same is required to be dismissed. 13. Accordingly, the present petition is dismissed with no order as to costs. Notice is discharged.