Shree Chandrashekhar, J. - (1.) The petitioner, who is the plaintiff in Title Suit No. 135 of 1999, is aggrieved of order dated 21.01.2017 passed in Misc. Case No. 09 of 2015 by which his application for amendment in the plaint of Title Suit No. 135 of 1999 and the judgment and decree in the said suit has been dismissed.
(2.) Title Suit No. 135 of 1999 was instituted by the plaintiff for a decree for specific performance of the contract in respect of 7 decimals of land out of R.S. Plot No. 1450 covered under Khata No. 85 situated at village-Missirgonda, P.S. Bariatu, District-Ranchi. The description of the suit land has been given under the schedule appended to the plaint. The suit was decreed vide judgment dated 31.08.2012 and the plaintiff levied Execution Case No. 14 of 2012 for execution of the judgment and decree in Title Suit No. 135 of 1999. In the pending execution case, the petitioner filed an application for amendment, however, simultaneously he has also filed a similar application in the Court which has decreed Title Suit No. 135 of 1999. This application has been registered as Misc. Case No. 09 of 2015. In his application dated 02.03.2015, the petitioner has averred as under : 3. "That it is to state and submit that due to inadvertance, and ignorance, the Khata number of suit plot no. 1450/A, was mentioned in plaint para '5' and in schedule of plaint of Title Suit no. 135/99 filed by petitioner against opposite parties for specific performance of contract in respect of part of R.S. Plot no. 1450, marked as R.S. Plot no. 1450/A of village Missirgonda, PS-Bariatu, District-Ranchi as 85, and no objection whatsoever was ever raised even by the defendants regarding said mentioned khata number and the suit was ultimately disposed of, by terms of judgment and decree dated 14.09.12 in favour of plaintiff, herein the petitioner. 5. That the petitioner has filed an Execution Case No. 14 of 2012, to levy execution of said decree, which is pending at this court. 6. That in said Execution case, the court was pleased to call for a valuation report from the District Sub-Registrar, Ranchi, vide letter no. 04, dated 20.01.2015, and in compliance whereof said Authority instead of sending valuation report, demanded the ward number, where the suit land situated through his letter available on record of Execution Case No. 14/12 and the petitioner furnished the ward number of the area, where the suit land situated, as Ward No. '2' within Ranchi Municipal Corporation, Ranchi, through a petition but later petitioner was advised to get the ward number incorporated in the judgment, Decree and plaint of the original suit in the interest of justice for better effectuation of the decree. 7. That in course of preparation of said amendment petition, the petitioner noticed that khata number of suit plot viz. part of R.S. Plot No. 1450, marked as R.S. Plot No. 1450/A is mentioned as Khata No. '3' decree of earlier Partition Suit No. 181 of 1941 Rai Saheb Ganpat Rai and others Vrs. Munda Oraon and others whereunder suit plot was allotted to the share of Execution of defendant no. '1', which was later merged under defendant no. '2', and it is submitted that petitioner had no knowledge about the same earlier."
(3.) Order VI Rule 17 CPC, which permits amendment in the pleadings at any stage of the proceedings is founded on the principles of equity, justice and good conscience, provides that the court may permit either party to amend his pleadings at any stage of the proceedings, however, Rule 17 CPC itself puts a limitation on powers of the court to permit amendment in the pleadings. It provides that if amendment in the pleadings is necessary for the purpose of determining the real question in controversy between the parties, all amendments in the pleadings can be permitted on such terms as the court may deem just and proper. After Order VI Rule 17 CPC was amended by the Code of Civil Procedure Amendment Act, 2002 and a proviso was inserted therein, further limitation has been put on powers of the court to permit amendment in the pleadings. It provides that no application for amendment shall be allowed after the trial has commenced and by now it is well-settled that proviso to Order VI Rule 17 CPC is mandatory. In "Salem Advocate Bar Association, T. N. Vs. Union of India reported in, 2005 6 SCC 344", scope of proviso to Order VI Rule 17 CPC has been discussed by the Supreme Court in the following words : 26. ........"The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision".;