Anil Kumar, J. - (1.) Heard Sri Ram Kushgal Tewari, learned counsel for petitioner and perused the record.
(2.) Facts in brief of the present case are that respondent-plaintiff filed a suit for permanent injunction registered as Regular Suit No. 432 of 2005 (Sattidin and others v. Hatim and others). During the pending of the said suit, an application for amendment under Order 6, Rule 17 CPC has been moved by the plaintiff, the same was allowed by an order dated 18.12.2014 passed by trial court. Aggrieved by the said order, the defendant filed a civil Revision No. 9 of 2015 (Hatim Khan v. Sattidin and another), dismissed by an order dated 11.09.2015 , under challenge in the present writ petition.
(3.) After hearing learned counsel for parties and going through the record and taking into consideration the finding given by the court below that by way of amendment, no pre-judice will cause to the defendant and the amendment is necessary for disposal of the controversy involved in the matter in question as well as law as laid down by Hon'ble the apex Court in the case of Vidyabai and others v. Padmalatha and another (2009) 2 SCC 409 wherein Hon'ble the Apex Court has held as under:- "By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002) Parliament inter alia inserted a proviso to Order 6, Rule 17 of the Code, which reads as under:- "Provided that no application for amendment shall be allowed after the trail 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 condition precedent therefore 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. 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 6, 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 plain.";