JUDGMENT : Heard Mr. Prashant Pallav, learned counsel appearing for the petitioners and Mr. Amar Kr. Sinha, learned counsel appearing for the opposite party Nos.2, 3 & 5. 2. The notices upon the other opposite parties have been effected, however, till date nobody have appeared on behalf of them and the notices upon the O.P. No.6 & 7 have been dispensed with by the Coordinate Bench of this Court and in view of that the O.P. Nos.6 & 7 are said to be the proforma opposite parties. 3. This petition has been filed under Article 227 of the Constitution of India for quashing of the order dated 27.07.2023 passed by learned Civil Judge (Junior Division) XVIII, Giridih in Original Suit No.919/2019 whereby the petition filed by the petitioners/plaintiffs under Order VI Rule 17 dated 07.08.2018 has been rejected by the learned Court. 4. Mr. Prashant Pallav, Learned counsel appearing for the petitioners submits that the dispute between the petitioners and respondents with regards to the lands measuring an area of 4(four) Katha and 3 (three) Chhatakas by standard measurement with all houses and structures standing thereon and at Survey Plot No.408, Khata No.81, Municipal Survey Plot No.703, situated at Giridih Main Chowk, P.S.-Giridih (Town), District- Giridih and situated in Municipal Holding No.984 and 985 of old ward No.3, new Ward No. and presently Ward No.23 of Giridih Municipality. He submits that wherein the prayer was made that the defendants have got no right, no title, no concern and no possession over the suit land and they have no right whatsoever to make interference with the peaceful possession of the petitioners and for that declaration, the said suit is instituted. He submits that a Title Suit being Title Suit No.76 of 1979 against Babu Girnailal Sarawgi (father of plaintiff/proforma respondent No.6 & 7), Sawar Mall Sharma, Debi Prasad Jalan, Satnarain Sonar and Noor Kunjara were instituted in the Court of Munsif at Giridih which was dismissed on 02.12.1980. He submits that the plot of the said suit and the present suit are similar. However, inadvertently in the Schedule of the present plaint the Survey Plot No. typed as “703” in the place of “408” and Survey Plot No.703 in place of Survey Plot No.“2703” of the same Khata. He submits in view of that the petition was filed and the learned Court has wrongly rejected the same. However, inadvertently in the Schedule of the present plaint the Survey Plot No. typed as “703” in the place of “408” and Survey Plot No.703 in place of Survey Plot No.“2703” of the same Khata. He submits in view of that the petition was filed and the learned Court has wrongly rejected the same. According to him, this is formal amendment which was ought to be allowed by the learned Court, however, the same has been rejected. He submits that the prejudice will not be caused to the respondents/defendants. He further submits that this aspect has been admitted in the written statement at paragraph 9 filed by the defendant and to buttress this argument he relied the judgment of Hon’ble Orissa High Court in the case of “Puna Bewa and Ors. Vs. Dinabandhu Mangaraj and Ors.”, reported in MANU/OR/0037/1985 and the same High Court in the case of “Soudamini Chhotaray Vs. Surya Naryana Khuntia and Ors., reported in MANU/OR/0235/2010 , as well as in the case of “Rajeshwar and Ors. Vs. Board of Revenue and Ors. reported in MANU/SC/0546/1995, wherein at paragraph No.10 of the said judgment it has been held as under :- 10. So far as the order of Additional Collector, Meerut dated 18.1.1951 is concerned, it keeps the question concerning the nature of Anandi Devi’s interest open. The order expressly says that the said question can be agitated after the death of Anandi Devi. Insofar as the order of the Consolidation Officer is concerned it is evident that it does not deal with the nature and character of Anandi’s interest in the said properties. Anandi Devi was alive at that time and the dispute as to the nature of her interest was to be raised only after her life time as per the order of the Additional Collector referred to above and to which course both the parties had agreed. Be that as it may, the order of the Consolidation Authority does not show that the said question was gone into or pronounced upon by it in the said order. It is on these facts and the questions at issue have to be decided. Of the two preliminary issues, the first one raises the question whether the suit is maintainable in view of the change of identity of the suit lands due to consolidation proceedings has any effect upon the rights of the parties. It is on these facts and the questions at issue have to be decided. Of the two preliminary issues, the first one raises the question whether the suit is maintainable in view of the change of identity of the suit lands due to consolidation proceedings has any effect upon the rights of the parties. It would only be a case of substitution of one property for the other. The title in the previous property gets attached to the substituted property. The second issue raises the question whether the present suit is barred by Section 49 of the U.P. Consolidation of Holdings Act. Section 49 reads as follows: "Bar to civil jurisdiction.- Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure-holders in respect of land lying in an area, for which a [notification] has been issued under sub-section (2) of Section 4], or adjudication of any other rights arising out of consolidation proceedings and in regard to which a proceedings could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no Civil or Revenue Court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act." 5. Relying upon the above judgments, he submits that the only the plot No. is sought to be changed that is formal in nature and in view of above cases, the learned Court has been pleased to reject the same and in view of that the learned Court has wrongly passed the order and the same may kindly be set aside. 6. Per contra, Mr. Amar Kr. Sinha, learned counsel for the opposite parties No.2, 3 & 5 submits that the suit has already reached at a stage of argument and the amendment petition has been filed at that stage to change the figure of “703” with figure of “408” and figure of “703” with figure of “2703” with regard to the plot. He submits that a counter-affidavit has been filed wherein the evidence of PW-2 has been disclosed and he has stated about the suit land being 703 and 408. He submits that a counter-affidavit has been filed wherein the evidence of PW-2 has been disclosed and he has stated about the suit land being 703 and 408. He further submits that at such a belated stage, such petition cannot be allowed and in view of the fact that the duly diligence has not been shown by the petitioner herein. He relied upon a judgment of Hon’ble Supreme Court in the case of “J. Samuel and Others Vs. Gattu Mahesh and Others, reported in (2012) 2 Supreme Court Cases 300 and he refers to para No.16 which is as under:- “ 16. As stated earlier, in the present case, the amendment application itself was filed only on 24.09.2010 after the arguments were completed and the matter was posted for judgment on 04.10.2010. On proper interpretation of the proviso to Rule 17 of Order 6, the party has to satisfy the court that it could not have discovered that ground which was pleaded by amendment, in spite of due diligence. No doubt, Rule 17 confers power on the court to amend the pleadings at any stage of the proceedings. However, the proviso restricts that power once the trial has commenced. Unless the court satisfies (sic itself) that there is a reasonable cause for allowing the amendment, normally the court has to reject such a request.” 7. In view of the above submission of learned counsel for the parties, the Court has gone through the materials on record including the impugned judgment as well as pleadings made by the petitioners herein and as well as defendants. 8. Admittedly, in the plaint of the Original Suit No.919 of 2019, in the Schedule, the Survey Plot no. is disclosed as “703”, and Municipal Survey Plot No.703 has been indicated and typed and the suit has already been proceeded. The witnesses have been examined and they have already been cross-examined and thereafter, the suit has reached to the stage of argument and at this stage the said petition has been filed before the learned Court and the prayer has been made to change the figure of “703” with “408” and further the figure of “703” with “2703”. It has been pointed out that the plaint of title suit No.76 of 1979 was already marked as Exhibit and in spite of that no care has been taken if the plot no. It has been pointed out that the plaint of title suit No.76 of 1979 was already marked as Exhibit and in spite of that no care has been taken if the plot no. was not correct it has to be corrected at the earlier stage, at a later point of time, at the time of argument, the said has been tried to be changed and the learned Court rejected the same, considering the fact that the trial has already commenced and there is no prove that the plaintiff in spite of due diligence could not raised the matter before the commencement of the trial. 9. This Court has minutely looked into the petition filed under Order VI Rule 17 and finds that no reason has been assigned in the said petition meant for amendment as to why the same has been filed at such a belated stage. 10. Order 6 Rule 17 proviso, it is mandatory that the amendment can be allowed only if in spite of due diligence, the parties could not have raised the matter before the commencement of the trial and if an amendment is necessary to decide the real dispute between the parties, it should be allowed. The reference may be made to the case of “Vidyabai & Ors. Vs. Padmalatha & Anr. reported in 2009 (1) Supreme 238 , paragraph Nos.7 & 14 held as under:- “ 7. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under: "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." It is couched in a mandatory form. 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. 14. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. 14. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court’s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.” 11. The Court is in agreement with the judgment relied by the learned counsel appearing for the petitioners in the case of Rajeshwar and Ors. Vs. Board of Revenue and Ors. (supra) . It is well settled that the ratio of judgment is applied in the facts and circumstances of each case and the witness have also stated about the plot No.703 and other plots. There is no doubt that the Courts are very liberal in allowing the amendment if it is formal in nature. However, at the same time, if the said petition is allowed and if it is changing the complete nature of suit then allow such petition is prohibited. The Court has also looked into the para 9 of the written statement filed by the respondent/defendants and find that the only admission is made with regard to filing of the Title Suit No.76 of 1979 and it is not admitted that the plot in question of the said suit and the present are similar in nature. In view of the above facts of this case, the learned court has rightly passed the order and there is no illegality in the impugned judgment and as such this petition is dismissed. 12. However, this order will not prejudice the case of the either of the parties and learned Court will decide the said suit in accordance with law.