YOSHODABAI Vs. UMASHANKER GUPTA

JUDGEMENT

(1.) This petition has been brought being aggrieved by the order dated 31.07.2019 passed by the learned First Civil Judge Class-II, Raigarh, C.G., in Civil Suit No.159/2013, in which the prayer of petitioner/plaintiff to bring amendment in pleadings under Order 6 Rule 17 of C.P.C. and application under Order 7 Rule 14 were dismissed.

(2.) Learned counsel for the petitioners submits that in this particular case, the Civil Suit was filed before the year 1999. On 15.04.1996 the petitioner/plaintiff filed an application praying for amendment in his plaint on the basis of the subsequent events and also to elaborate the pleading already present in the plaint. The learned trial Court has given emphasis to the proviso to the amended Order 6 Rule 17 of C.P.C., according to which, any application for amendment shall not be allowed if the trial has commenced unless the Court come to conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial and held that the petitioner/plaintiff has failed to explain accordingly and his application has been rejected.

(3.) It is further submitted that in the case of State Bank of Hyderabad Vs. Town Municipal Council, 2007 1 SCC 765, it has been very clearly held that the proviso was appended to Order 6 Rule 17 and made effective from year 2002. Making reference to Section 16(2)(b) of the Amending Act of 2002, it was held that the amended provision was not made applicable to the pleadings in the plaints filed earlier to the date the amendment was made effective, therefore, the learned trial Court should not have emphasized on the proviso and allowed the application, hence, the order passed is unsustainable, which is liable to be set aside.