JUDGMENT
S.B. Deshmukh, J.
1. Heard learned Counsel Mr. R.N. Dhorde, instructed by Mr. R.L. Kute Advocate who appears for the petitioner, Mr. L.D. Vakil learned Counsel for respondent No. 6-a, Mr. V.D. Hon learned Counsel for respondent No. 6-b2 and Mr. S.V. Gangapurwala, learned Counsel for respondent No. 6-c. Other respondents, to whom notice was issued earlier, are served, absent. This Court by the earlier order dated 9-4-2007 at the request of learned Counsel for the petitioner, issued notices only to respondent No. 6-a to 6-d since application for amendment was moved for respondent No. 6/defendant No. 6. Suit is also part heard, therefore notices at the request of learned Counsel for the petitioner, were not directed against other respondents.
2. Rule. Rule made returnable forthwith and heard finally by consent of the parties.
3. The petitioner is plaintiff No. 1 in Special Civil Suit No. 207 of 2002. On instructions from the petitioner, Mr. Dhorde, learned Counsel submits, that original plaintiff No. 2 Harvinder Kaur has filed purshis seeking withdrawal of the suit in the trial Court. Said purshis as on today, is pending in the suit. Respondents in this Writ Petition are defendants in Special Civil Suit No. 207 of 2002. Respondent No. 6 is defendant No. 6 in Special Civil Suit No. 207 of 2002. The parties hereinafter are referred to their status in relation to Special Civil Suit No. 207 of 2002.
4. The defendant No. 6 (iv) Mr. Vinay, has filed an application seeking amendment to the Written Statement on behalf of the defendant No. 6. This amendment application, is at Exhibit 405 in the trial Court. This application is filed on 21-2-2007. This application is allowed by the trial Court and amendment as per Para 16-A is permitted. This order is challenged in this Writ Petition.
5. Learned Counsel for the petitioner/plaintiff submits that the written statement on behalf of the defendant No. 6 is filed in the trial Court on 25-11-2002. Application seeking temporary injunction was filed on behalf of the plaintiff. Said application was rejected. Appeal From Order No. 11 of 2005 and 12 of 2005 were filed in this Court. This Court while disposing of these Appeals from Order No. 11 of 2005 and 12 of 2005, directed status-quo and has given time frame for early disposal of the suit. Issues were settled in view of the pleadings of the parties on 24-8-2005. Evidence on behalf of the plaintiff by way of affidavit in view of Order 18, Rule 4 of the Code of Civil Procedure was adduced on 15-9-2006. On behalf of the defendant No. 4 cross-examination of plaintiff No. 1, begun on 10-1-2007. Matter was adjourned and ultimately on 20-1-2007 cross-examination on behalf of defendant No. 4 is over. Plaintiff No. 1 is under cross-examination by and on behalf of other defendants. On 21-2-2007 when plaintiff was under cross-examination, present application Exhibit 405 for amendment came to be filed on behalf of the defendant No. 6 as noted above. Copy of this application is made available and annexed as Annexure D with this Petition. By the proposed amendment para 16-A plea of part performance in accordance with the provisions laid down under Section 53A of Transfer of Property Act is sought to be raised. One more admitted fact needs to be noted is that, one more Special Civil Suit No. 171 of 2003 is pending in the trial Court. All the learned Counsel appearing for respective parties, admitted that, hearing of Special Civil Suit No. 171 of 2003 and present Special Civil Suit No. 207 of 2002, is being done simultaneously by the trial Court. Common evidence is being recorded.
6. Learned Counsel for the defendants fairly admitted, that no specific reason, for moving this amendment application, on 21-2-2007 in view of Proviso to Order 6, Rule 17 of the Code of Civil Procedure is stated in the application. According to learned Counsel appearing for the defendants , Proviso to Order 6, Rule 17 of the Code of Civil Procedure is not mandatory. The trial Court referring to the Judgment of the learned Single Bench of this Court in Writ Petition No. 7617 of 2006, allowed the amendment application. Discretion exercised by the trial Court is in consonance with the Scheme of Order 6, Rule 17 of the Code of Civil Procedure. Inconsistent pleas are not raised by way of amendment. They have also invited my attention to earlier plea made in the Written Statement filed on behalf of the defendant No. 6. Copy of the Written Statement is on record. All the learned Counsel for the defendants have invited my attention to paragraph No. 16 of the said Written Statement. Agreement dated 7-1-1994 is referred to in detail in this paragraph. According to them therefore, by way of amendment legal plea under section 53 A of the Transfer of Property Act, is being raised. Therefore, according to them the Petition is devoid of substance and should be dismissed.
7. It is undisputed fact that the Written Statement filed on behalf of the defendant No. 6, is dated 25-11-2002. “Pleading”, is defined under Order 6, Rule 1 of the Code of Civil Procedure. In relation to plaintiff, plaint is the pleading and in relation to defendant, written statement shall be the pleading. With this provision and fact that the Written Statement is filed on 25-11-2002, in my view, the amended provision of Order 6, Rule 17 of the Code of Civil Procedure made enforceable since with effect from 1-7-2002 is applicable to the facts of the present case. Argument on behalf of the defendants that there cannot be two parameters, to the plaintiff and defendant, though appealing, does not hold up.
8. Order 6, Rule 17 of the Code of Civil Procedure has suffered amendment. This is by the Code of Civil Procedure (Amendment) Act, 2002. This amendment is made enforceable with effect from 1-7-2002. Statement of objects and reasons, of the Code of Civil Procedure (Amendment) Act, 2002 refers to the civil proceedings. The Legislature, with a view to cutting short the delays at various levels of civil proceedings, have, resolved to amend the Code of Civil Procedure. Such is the amendment to the Code of Civil Procedure (Amendment) Act, 1999. The suggestions from various sections of the society, were invited and considered. The Report of Law Commission of India in relation to the amendment, was also considered and ultimately this amendment, was made enforceable from 1-7-2002. Thus to cut short the delay in civil proceedings, Order 6, Rule 17, has suffered amendment. After amendment, this provision reads thus:
Order 6, Rule 17. Amendment of pleadings.– The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided 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.
9. By the amendment, Proviso to Rule 17 of Order 6 of the Code of Civil Procedure is added. Application for amendment to the pleadings, shall be considered by the Court even after the trial is commenced, however subject to the conclusion arrived at by the Court that in spite of due diligence, the party could not have raised the matter before the commencement of trial. By this Proviso therefore seems to have put up an obligation on the party seeking amendment, to explain moving of application even after commencement of the trial. In other words, from the date of filing of the pleading in the Court, still parties, can file an application for amendment without any explanation till the commencement of the trial. This span of time is still considered to be reasonable for moving any application seeking amendment to the pleadings by the respective party. However this unfettered contingency of moving application for amendment to the pleadings seems to have been curtailed after commencement of the trial. The party concerned is under obligation now to explain that in spite of due diligence, party concerned could not move the application for amendment before the commencement of trial. Now therefore after the enforcement of amendment to Order 6, Rule 17 of the Code of Civil Procedure i.e. from 1-7-2002 every party has to file an application in consonance with Order 6, Rule 17 of the Code of Civil Procedure. This view which I am taking, is supported by the Judgment of the Apex Court to which my attention is invited by the learned Counsel for the petitioner. It is in the matter of Ajendraprasadji N. Pande v. Swami Keshavprakeshdasji N. reported in 2007 AIR SCW 513. Facts, in the cited Judgment, are similar to the facts obtaining in the case on hand. Applying the test of Order 6, Rule 17 of the Code of Civil Procedure to the application filed by the defendant, it is clear that no explanation and/or nothing is pleaded regarding due diligence. The agreement in question undisputedly is dated 7-1-1994 as noted above. The Suit as noted above, filed on 25-1-2002. Written Statement as noted earlier, filed on 25-11-2002. It is undisputed fact that another Suit is also pending in the trial Court bearing Special Civil Suit No. 171 of 2003. Learned Counsel for the defendants also admits that in that Suit in the Written Statement filed on their behalf, plea under Section 53 A of Transfer of Property Act is specifically raised. On these premise, in my view, the defendant No. 6 ought to have explained the efforts taken by them and their inability to make the pleading in earlier Written Statement and/or prior to the commencement of the trial of Special Civil Suit No. 207 of 2002.
10. The trial Court, has referred to the Judgment of the learned Single Bench of this Court in Writ Petition No. 7617 of 2006. Copy of the same is made available by learned Counsel Mr. Hon. On my query, Mr. Hon could not point out number of the Suit in that matter. It appears that application for amendment was moved in RCA No. 126 of 2004. We are not aware as to when the original pleading was filed in the matter of Mangalabai. The date of filing of the pleading is material in view of the provisions of Order 6, Rule 17 of the Code of Civil Procedure. Apart from this, I have seen from the Judgment in the matter of Mangalabai, that the facts are entirely different. Ratio of this Judgment is not therefore applicable to facts obtaining in the case on hand. Trial Court has referred the Judgment of this Court and allowed the application. Trial Court did not even refer to the provisions of Order 6, Rule 17 and its Proviso of the Code of Civil Procedure. Order passed by the trial Court being contrary to Order 6, Rule 17 of the Code of Civil Procedure, needs to be quashed and set aside,
11. Learned Counsel for the defendants also submits that it is a technical amendment. According to them it is a legal plea which can be raised at any time. It is not possible to accept the submissions made on behalf of the defendants. Pleading is altogether different, which has to be made in accordance with the provisions of law. Raising of plea is altogether different aspect of the matter. Considering the facts and situation, it cannot be said that the technical amendment can be permitted in contravention of the provisions laid down under Order 6, Rule 17 of the Code of Civil Procedure. All amendments to the pleading, should be considered and permitted in view of the provision laid down under Order 6, Rule 17 of the Code of Civil Procedure.
12. In the result, order passed by the trial Court being perverse, needs to be quashed and set aside by allowing this Writ Petition. Order passed below Exhibit 405 in Special Civil Suit No. 207 of 2002, therefore is quashed and set aside. Said application stands dismissed. Petition is allowed in above terms and Rule issued is also made absolute. No costs.
13. Learned Counsel Mr. Vakil seeks stay to this order for four weeks. Mr. Dhorde, learned Counsel on instructions submits that time is extended by this Court to decide and dispose of the Suit till 30-4-2007. In this view of the matter, oral application made for stay to this order, stands rejected.