- (1.) I have heard learned counsel for petitioner on the admission of this civil revision petition u/sec. 115 C. P. C. which is directed against the order dated 9. 12. 2002 of the learned Addl. District & Sessions Judge, Kishangarh, Ajmer in Civil Regular Appeal No. 14/1997 rejecting the application for amendment of the written statement at the appellate stage filed under Order 6 Rule 17 read with Section 151 C. P. C.
(2.) NON-petitioner instituted a suit for possession of Quarter No. 25 described in para 2 of the plaint and for a decree of Rs. 2160/- along with pendentelite and future mesne profits till the delivery of the possession stating therein that he was the owner of the disputed property on the basis of a sale certificate dated 5. 10. 1972 having purchased it in auction held in execution of a decree in Civil Execution Case No. 3/1968. Petitioner (defendant) in that suit contested the suit by filing a written statement and denying the averments made in the plaint. The suit was after its due trial decreed on 12. 9. 1997 against which petitioner filed an appeal before the learned court below which is admittedly pending. During the pendency of the said appeal, petitioner moved an application under Order 6 Rule 17 r/w Section 151 C. P. C. for permission to amend the written statement and to add paras (2-A) to (2-E) in the written statement which was resisted by and on behalf of non-petitioner (plaintiff) in that suit by filing a detailed reply thereto. Learned court below after hearing the parties dismissed the said application vide impugned order which is under challenge in this revision. I have perused the impugned order. In view of the amended proviso to sub-section (1) of Section 115 C. P. C. as interpreted by Madhya Pradesh High Court in the case of `phool Singh vs. Mavla @ Bhavaliya and others' (1), Karnataka High Court in the case of `k. R. Subbaraju vs. M/s. Vasavi Trading Co. & Ors. ' (2), and this Court in the case of Hari Prasad vs. Ram Dayal & Anr. (3), this court is precluded from varying or reversing the order impugned if the order impugned had been passed in favour of petitioner would not have finally disposed of the suit or other proceedings. Learned counsel for the petitioner could not show as to how if the order impugned had been passed in favour of the petitioner it would have disposed of the appeal finally. This apart, as per the amended provision of Rule 17 of Order 6 CPC which has been substituted by C. P. C. Amendment Act, 2002 w. e. f. 1. 7. 2002, no application for amendment can be allowed after the trial has commenced. Unless the court comes to the conclusion that inspite of due diligence the party seeking the amendment in the pleadings could not have raised the matter before the commencement of the trial. This court has in the case of Munni Lal vs. Sarabjit Singh (4), while interpreting the expression, `the trial of any suit' has clearly held that hearing of appeal by appellate court is not a part of trial of suit. So, in view of this amended provision, no amendment seems to be possible at the appellate stage, though as per the earlier provision as interpreted by the Hon'ble Apex Court amendment could be allowed even at the appellate stage.
(3.) IN this view of the matter, therefore, this revision petition deserves to be and is hereby dismissed. However, the petitioner may raise his grievance sought to be raised in this revision in appropriate forum, if so permitted by law. .;