K.K.SAREEN Vs. NEETA SHARMA

JUDGEMENT

(1.) This is an application for amendment of the written statement. It is stated in para 2 of the application that the plaintiffs have admitted the status of defendant No. 1 as a tenant from 01.04.1993 to 30.06.1994 and, therefore, this Court has no jurisdiction to try the present suit. The applicant wants to amend the written statement by inserting the following preliminary objections:-

(2.) The proviso to Order 6 Rule 17 of the Code of Civil Procedure provides 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.

(3.) In Vidyabai vs. Padmalatha, 2009 2 SCC 409, referring to the proviso added to Order VI Rule 17 of CPC by way Civil Procedure Code (Amendment) Act, 2002, Supreme Court observed that the proviso is couched in a mandatory form and held that the jurisdiction of the Court to allow an application for amendment 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. The Court clearly held that no application for amendment shall be allowed unless the Court is satisfied that in spite of due diligence the matter could not be raised before the commencement of trial. The Court was of the view that the proviso puts an embargo on the exercise of jurisdiction by the Court and unless the jurisdiction fact as envisaged in the proviso is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint. In Rajkumar Gurawara (Dead) through LRs. Vs. S.K. Sarwagi and Co. Pvt. Ltd. and Anr., 2008 AIR(SC) 2303, Supreme Court, referring to the aforesaid proviso to Rule 17 of Order VI, inter alia, observed as under:-