Amendment of Pleadings - Whether ‘Commencement of Trial’ as envisaged in the Proviso to Order VI Rule 17 CPC would mean the date of First Hearing [CASE LAW]

Code of Civil Procedure, 1908 - Order VI Rule 17 - Amendment of Pleadings - the expression “commencement of trial” in the proviso to Order VI Rule 17 of the Code of Civil Procedure would imply the date when the court first applies its mind after the affidavit of evidence is filed and when the first witness proves his affidavit of evidence or such witness seeks to prove a document for it to be tendered in evidence or the cross-examination of such witness begins, whichever is earlier.

IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION APPELLATE SIDE

The Hon’ble JUSTICE SANJIB BANERJEE And The Hon’ble JUSTICE SUVRA GHOSH

Date: April 2, 2019

CO No.2868 of 2017

SREE SREE ISWAR RADHA BEHARI JEW AND SREE SREE ISWAR SALGRAM JEW REPRESENTED BY BASUDEB DAS -VERSUSMALATI P. SONI

For the Petitioner: Mr Ashok Banerjee, Sr Adv. For the Union of India: Mr Asok Kumar Chakrabarti, Sr Adv., Mr Prabir Rej, Adv. For the State: Mr Ayan Banerjee, Adv.

SANJIB BANERJEE, J. : –

The legal issue involved pertains to the proviso introduced in Order VI Rule 17 of the Code of Civil Procedure, 1908 with effect from 2002.

2. A single bench of this court has put up the following question for a decision on reference:

“Whether, in view of Vidyabai vs. Padmalatha [(2009) 2 SCC 409], ‘commencement of trial’, as envisaged in the proviso to Order VI Rule 17 of the Code of Civil Procedure, would mean the date of first hearing, that is the date of framing of issues, or the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments?”

3. Though the facts may not be completely relevant since it is only the legal question that has been referred to by the single bench that has to be answered, but it must be appreciated that no legal issue is decided in the abstract and the decision must always be pegged to a factual context. In this case the civil revision has arisen out of an order partly allowing an application to amend the plaint in an eviction suit. Issues have been framed in the suit. However, the evidence has not yet been received in the sense that no affidavit in lieu of examination-in-chief has yet been filed or, at any rate, no such affidavit was filed prior to the amendment application being filed.

4. The amendment application consisted of two parts: the first part being to correct the valuation of the suit since the admitted rent as indicated in the written statement was more than the rent as indicated inthe plaint; and, to include the acquisition of some new premises by the defendant-tenant after the institution of the suit. By the order impugned, the second part of the amendment application has been allowed; but the first has been rejected on the ground that the plaintiffs should always have been aware of the rent payable and since the amendment was sought after the commencement of the trial, such amendment could not be permitted.

5. The opposite party has been served but none appears on her behalf. The opposite party was not represented despite service when the matter was heard by the single bench on August 27, 2018. Notices have been issued to the Union and the State and both the Union and the State have been heard.

6. The trial court made a distinction based on the command of the new proviso to Order VI Rule 17 of the Code under the 2002 Amendment to the Code. Order VI Rule 17 thereof now provides as follows:

“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.”

7. In a sense, the proviso sets out a jurisdictional pre-condition for the exercise of an authority to allow an amendment. Ordinarily, courts have been liberal to allow pleadings to be amended at any stage so that the real disputes between the parties may be determined and there is no multiplicity of judicial proceedings. However, for several decades the provision permitting amendment has been misused to stall a worthy claim or to harass the other side. The proviso now leaves very little room for the court’s discretion. The only element of discretion is the subjective satisfaction of the court that the delay in seeking amendment was not by design and that such delay was occasioned despite due diligence on the part of the applicant. If the trial has been commenced in a case, the parties can no longer amend their pleadings unless the court is satisfied that the amendment sought at the belated stage could not have been sought earlier.

8. The operation of the proviso, apparently, rules out the correction of mistakes in most cases and the introduction of any new material that, upon exercise of due diligence, could have been incorporated before the trial commenced. The legislative intent behind the amendment is to expedite the disposal of civil claims and introduce a level of accountability, both in lawyers and in litigants, that may have been missing earlier.

9. The effect of the proviso may also be seen from another perspective. If an additional ground in support of the claim or an additional ground ofdefence was available but had been omitted to be included in the original pleadings, the commencement of the trial would rule out its incorporation notwithstanding the prejudice that a party suffers as a result of such omission. In a matter of speaking, the underlying principle of constructive res judicata has been introduced with almost no discretion to the court, whatever may be the consequences. It is, in such sense that the amendment demands a higher sense of accountability from both the litigants and their lawyers. Also, on the face of the provision, such principle of constructive res judicata is to operate at the stage of the commencement of the trial and not upon the conclusion of the lis as is ordinarily the accepted position.

10. The proviso to Order VI Rule 17 of the Code appears to have placed an embargo on the court. On a strict interpretation of the provision, the very exercise of authority by the court is impermissible in certain circumstances and the relaxation of such impermissibility has no nexus with the gravity of the omission. Unlike in, say, Section 5 of the Limitation Act, 1963, where the sufficiency of the explanation for the delay is left to the subjective opinion of the court, the embargo under the proviso to Order VI Rule 17 of the Code appears to operate if a particular milestone is crossed in the lis. The gravity of the omission may no longer be a relevant consideration for the court, nor may the court balance the equities by putting the laggard on terms. The operation of the embargomay be figuratively seen as a clear demarcation between the black and the white with almost no grey area in between.

11. In the context of such a strict embargo, what is of paramount importance is to decipher the meaning of the expressions “trial has commenced” and “commencement of trial” as used in the relevant proviso and how deep in the life of a civil suit may a trial be seen to have commenced for the embargo under the proviso to fall into place.

12. In the judgment and order of reference of September 5, 2018, the court noticed several Supreme Court judgments and two single bench judgments of this court before quoting several paragraphs from the judgment reported at (2009) 2 SCC 409 (Vidyabai v. Padmalatha) and framing the question set out above.

13. It is necessary to notice the several judgments referred to in the judgment and order of reference and some of the others that have been cited in course of the present hearing before venturing to answer the legal question framed. The only caveat that has to be entered at the outset is that judgments of courts cannot be read as statutes and must be read in the context of the facts in which they were pronounced. It must also be remembered that the ratio decidendi of a judgment is what such judgment actually decides in the context of the facts and not necessarily what may logically follow therefrom.

14. Since it is the dictum in Vidyabai that is mentioned in the order of reference and the perceived ratio thereof that appears to have most engaged the attention of the single bench, it is such judgment that needs to be looked into before the others. In that case, the suit was for the specific performance of an agreement for sale of an immovable property. A written statement was filed, issues were framed and the parties filed their respective affidavits of evidence. Dates were fixed for the crossexamination of the witnesses. However, before any witness could take to the box, the defendant applied for amendment of the written statement, which was declined by the trial court on the ground that a new case was sought to be made out. The trial court disbelieved that the material sought to be incorporated was not within the knowledge of the defendants at the time of preparing their written statements.

15. The order was challenged before the High Court of Karnataka. The High Court observed that the defendants had not attempted to detract from any statement made in the original written statements, noticed that the application for amendment was lodged after at least one affidavit of evidence had been filed by the plaintiffs, referred to the amended Order VI Rule 17 of the Code as applicable, but proceeded to hold that the filing of an affidavit by way of evidence was not good ground to reject the application for amendment as a valuable right would be lost to the defendants. Upon noticing such facts, the Supreme Court posed the question, at paragraph 11 of the report, as to whether the trial in thatcase had commenced at the time that the defendants applied for amending the written statements. The Supreme Court also expressed the view that the trial in that case had, indeed, commenced. However, it appears that the court may have, with respect, mixed up between commencement of trial and commencement of proceedings to hold that the embargo under the proviso to Order VI Rule 17 had already fallen into place. Paragraph 11 of the report is quoted in such context as it uses the expression “commencement of proceeding” and not “commencement of trial”:

“11. From the order passed by the learned trial Judge, it is evident that the respondents had not been able to fulfil the said precondition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination-in-chief of the witness, in our opinion, would amount to `commencement of proceeding'.”

16. The judgment in Vidyabai thereafter proceeded to notice several judgments and referred to Order XVIII Rule 4 of the Code before holding that unless the jurisdictional fact as envisaged in the relevant proviso is satisfied, the court may not have any authority to consider the amendment.

17. The first of the judgments noticed in Vidyabai was the one reported at (1996) 4 SCC 127 (Union of India v. Major General Madan Lal Yadav) for the exposition therein on the cognate expression “trial commenced” asused in Section 123(2) of the Army Act prior to its 1992 Amendment. The three-judge bench in Madan Lal Yadav relied on the dictionary meaning of the word “trial”. Of the several dictionaries relied upon, one of them was Black’s Law Dictionary (6th Ed) which defines ‘trial’ as a judicial examination and determination of issues between parties to action. An earlier edition of the same text has been cited by the Union in the present case where the relevant definition was the same as in the later edition. Upon noticing the meanings of the words ‘trial’ and ‘commencement’, the court held in Madan Lal Yadav as follows at paragraph 19 of the report which has also been quoted in Vidyabai:

“19. It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with trial.”

18. Vidyabai next considered Order XVIII Rule 4 of the Code and the judgment reported at (2004) 1 SCC 702 (Ameer Trading Corporation Limited v. Shapoorji Data Processing Limited) in the light of such provision. It then went on to refer to a judgment reported at (2005) 4 SCC 480 (Kailash v. Nanhku) before quoting paragraph 13 from such report that says that, in a civil suit the trial begins when the issues are framed and the case is set down for recording of evidence. Vidyabai next relied on the judgment reported at (2006) 12 SCC 1 (Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N.) and quoted from such judgment on itsdiscussion in respect of the relevant proviso. However, Ajendraprasadji merely reiterated the ratio in Kailash that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence.

19. It is, thus, that the discussion in Kailash on the legal aspect assumes greater significance. The question that arose in Kailash is captured in the first sentence of paragraph 13 of the report:

“At this point the question arises: when does the trial of an election petition commence or what is the meaning to be assigned to the word 'trial' in the context of an election petition? …”

20. The immediate following sentence seeks to make an analogy with a civil suit in the observation that, “In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence.” In all humility, notwithstanding this sentence being read in the judgment in Ajendraprasadji and even in the judgment in Vidyabai to be the ratio decidendi of the judgment in Kailash, it does not appear to be so. Strictly speaking, the relevant sentence is obiter, though an obiter of the Supreme Court is of great persuasive value. However, with respect, the second sentence at paragraph 13 in Kailash cannot be seen to be the law as laid down by the Supreme Court under Article 141 of the Constitution. At any rate, the relevant sentence cannot be seen to be the enunciation of the law with reference to the expression “commencement of trial” or theexpression “after the trial has commenced” as used in the proviso to the amended Order VI Rule 17 of the Code.

21. Indeed, it was held in Kailash that merely because a provision of law was couched in a negative language implying a mandatory character, the same was not without exception; and that the courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in a negative form. The court also observed that unless compelled by express and specific language of the statute, the provision of the Code or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.

22. Vidyabai also referred to a judgment reported at (2006) 6 SCC 498 (Baldev Singh v. Manohar Singh) and observed that such judgment was not an authority for the proposition that the trial would not be deemed to have commenced on the date of first hearing; but also accepted that since documents were not filed in that case, the trial was found not to have commenced. Indeed, the ratio in Baldev Singh is captured in the following passage at paragraph 17 of the report:

“17. …. commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view ofproviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion on the court to allow an amendment of the written statement at any stage of the proceedings.”

23. Two other judgments have also been referred to in Vidyabai, those reported at (2004) 13 SCC 432 (Pradeep Singhvi v. Heero Dhankani) and at (2006) 4 SCC 385 (Rajesh Kumar Aggarwal v. K. K. Modi). The suits in both these cases were instituted prior to the 2002 Amendment to the Code becoming effective.

24. On a comprehensive reading on the judgment in Vidyabai, the law which has been laid down therein is that once any affidavit of evidence is received in a suit the trial in such suit would have commenced within the meaning of the expressions “trial has commenced” and “commencement of trial” as used in the proviso to amended Order VI Rule 17 of the Code. However, the dictum in Baldev Singh, which was noticed in Vidyabai and not detracted from is that without documents being filed the proviso to Order VI Rule 17 of the Code would not come into operation. In fact, that is exactly how the law laid down in Baldev Singh was read and understood at paragraph 16 of the report in Vidyabai.

25. In addition to the above judgments, several other judgments have been placed in course of the present reference. A recent judgment reported at (2018) 2 SCC 132 (Mohinder Kumar Mehra v. Roop Rani Mehra) has been carried by the petitioner for the discussion therein as to when trial commences within the meaning of the relevant expressions in theproviso to Order VI Rule 17 of the Code. In that case, a partition suit was instituted in 2009 in which the written statement was filed and issues were framed by August, 2010. The plaintiff sought and obtained time for producing evidence, but in January, 2011 the plaintiff applied for amending the plaint. The defendant objected to such application, inter alia, on the ground that several opportunities were given to the plaintiff to give evidence and, by an order dated December 8, 2010, the plaintiff was directed to file his evidence by January 28, 2011. A point of limitation was also raised, which is not relevant in the present context. Despite the amendment application, the trial court directed evidence to be led, kept the amendment application in abeyance with the observation that it would be considered at the final hearing and appropriate provisions made for the plaintiff to lead evidence if the application was allowed. Ultimately, the amendment application was disallowed. In dealing with such aspect of the matter, the Supreme Court referred to the dictum in Vidyabai that trial would have deemed to be commenced, for the purposes of the proviso to Order VI Rule 17 of the Code, when the affidavit of evidence was filed and, since no evidence had been led in the case before the amendment application was filed, allowed the amendment after dealing with the issue of limitation.

26. In the order of reference there is an unreported single bench judgment of April 26, 2013 rendered in CO 1323 of 2013 which has beennoticed. The view expressed by the single bench is captured in the following paragraph:

“The examination of the witness either orally or upon submission of the affidavit as envisaged under Order 18, Rule 4 of the Code would deem to be a date for commencement of trial and, therefore, the trial Court could not have taken a strict view that once the suit was posted at the preemptory board, the trial, in fact, commences.”

27. On behalf of the Union and the State a judgment of the Bombay High Court reported at (2012) SCC Online Bom 1283 (Mahadeo v. Balaji) has been placed. The Division Bench in that case noticed the concept of trial as recognised in Madan Lal Yadav, referred to Vidyabai and opined that “the trial in a civil suit commences from the date of filing of affidavits in lieu of the examination in chief of the witness/es and the proviso to order 6 Rule 17 of the Code of Civil Procedure, 1908 will come into play only after stage of filing of affidavits in lieu of examination in chief of witness/es.”

28. There is also a single bench judgment of this court reported at (2012) 3 CHN (Cal) 317 (Sayed Ali Mallick v. Ramjan Ali). Though at paragraph 31 of the report it was held that “the expression ‘commencement of trial’ ought to be given a restrictive meaning so as to regulate the amendment of pleadings from the stage when the case is set for recording evidence and not prior to the same when dates are fixed for inspection of documents”, in the following paragraph it was observed that since the parties had not filed their documents in that case, the trial could not be said to have commenced.

29. In the substantial amendment to the Code carried out with effect from July 1, 2002, the provision relating to recording of evidence under Order XVIII Rule 4 of the Code has not escaped the legislative scalpel. In every case now, the examination-in-chief of the witness is required to be on affidavit with copies served to the other parties. In theory, a witness need not appear at all, either before the court or a commissioner appointed by the court to record evidence, till such time that he needs to be cross-examined. In practice, however, most courts require a witness who has filed an affidavit of evidence in lieu of his examination-in-chief to step into the box and take responsibility for his affidavit. Or else, when any document is filed along with the affidavit in lieu of the examinationin- chief, the witness has to prove the document and the objection as to the admissibility of any document is subject to an order of the court. When the evidence is recorded before a commissioner the objection cannot be decided by the commissioner and such objection is per force adjourned for consideration before the court at the arguments stage. When the recording of the evidence is before the court itself, the court may pass an immediate order as to the admissibility of a document or may defer such adjudication to the arguments stage.

30. In a situation where the recording of the evidence is before the court itself, the trial would commence, within the meaning of the two like expressions used in the proviso to amended Order VI Rule 17 of the Code, at such stage when the court takes up the suit after any affidavit in lieu ofexamination-in-chief has been filed and the first witness climbs the box to prove his affidavit or to prove any document or to face the crossexamination.

31. The mere filing of the affidavit or affidavits in lieu of examination or examinations-in-chief may not amount to the commencement of the trial since the act of judicial examination would not commence upon the filing of any affidavit of evidence. That is the dictum in Madan Lal Yadav as acknowledged and accepted in the several judgments pertaining to the interpretation of the proviso to Order VI Rule 17 of the Code, including in Vidyabai. It has to be so, since it is possible that affidavits of evidence may be filed and the matter may not be taken up for a long time thereafter. Further, even after one or more affidavits of evidence are filed, no prejudice would be suffered by any party if a necessary amendment were to be allowed at such stage since an order allowing the amendment would surely permit fresh affidavits of evidence to be filed.

32. When the recording of evidence is before a commissioner, it is the day that the commissioner proceeds with the first sitting after any affidavit in lieu of examination-in-chief has been filed that the trial commences in right earnest within the meaning of the relevant expression in the proviso. That is not to say that the recording of the evidence before a commissioner amounts to the commencement of the act of judicial examination. However, it is such corresponding stage that has to be deemed to be the commencement of trial within the meaning of therelevant expression used in Order VI Rule 17 of the Code, if only to maintain a semblance of uniformity. After all, it is for a court to decide whether the recording of evidence would be before it or before a commissioner. Since the commencement of trial, within the meaning of the relevant expression, is at a particular stage when the evidence is recorded before the court, it is the corresponding stage, even before a commissioner, that should be regarded as the commencement of trial.

33. There is a distinction between when the trial stage commences in the life of a civil suit and when the trial actually commences within the meaning of the two relevant expressions used in the proviso to Order VI Rule 17 of the Code. Ordinarily, the trial stage commences in a suit immediately upon issues being determined. However, it is not immediately thereupon that the trial in a suit commences in right earnest and the commencement of the trial is only when any witness takes to the box, whether to prove his affidavit of evidence or to prove any document to be tendered into evidence or to face any cross-examination; for, it is at this stage that the court applies its judicial mind to examine the evidence or to consider whether a particular document is to be received in evidence or to consider the permissibility of the questions put in cross-examination. It is also open to the court to put its own questions to the witness; and, when the court does so, it surely applies its mind for the purpose of assessing the merits of the lis.

34. On a reading of the dictum in Madan Lal Yadav together with the law as laid down in Baldev Singh – particularly, as both these judgments have been quoted with approval in Vidyabai – it is evident that the two like expressions used in the proviso to Order VI Rule 17 of the Code as to commencement of trial would imply something more than the mere receipt of any affidavit of evidence since the filing of such affidavit does not result in the court immediately examining it or applying its judicial mind to the same. It is only when an affidavit of evidence is sought to be proved by a witness or any document referred to in such affidavit is sought to be tendered into evidence or the relevant witness beginning to face cross-examination, that the trial commences within the meaning of the two relevant expressions.

35. On the strength of the dictum in the judgment reported at (2005) 6 SCC 344 (Salem Advocate Bar Association (2) v. Union of India) the command in the proviso to Order VI Rule 17 of the Code ought, ideally, to be read as directory and not mandatory. However, the legality of such proviso was questioned in Salem Advocate Bar Association (2) and the Supreme Court did not find any illegality in such provision. Even in Vidyabai, the court observed that the interpretation that it gave to such proviso was in the absence of the constitutionality of such proviso being questioned before the court.

36. If the purpose of the 2002 Amendment to the Code, in general, and to Order VI Rule 17 thereof, in particular, is to expedite the disposal ofsuits, such provision cannot be seen to encourage a multiplicity of proceedings. If a key matter that goes to the root of the claim is found to have been mistakenly not incorporated in the original pleadings and, by reason of the mandatory command in the proviso to Order VI Rule 17 of the Code, the application for amendment is not permissible to be entertained, the court may readily accede to a prayer for withdrawal of the suit with liberty to file afresh under Order XXIII Rule 1 of the Code. However, such second bite of the cherry, so to say, would not be available to a defendant even if a key matter was not incorporated in such defendant’s written statement and the bar under the proviso comes into operation. It is, thus, that the expression “in spite of due diligence” has to be read down to allow an element of discretion to come into play for the avowed purpose “of determining the real questions in controversy between the parties” of Order VI Rule 17 of the Code. Such an interpretation would be in tune with the dictum in Kailash as, otherwise, it may “leave the court helpless to meet extraordinary situations in the ends of justice.” But that does not imply that even if there is no plausible explanation, a key amendment applied for at a stage when the bar operates may be allowed for the mere asking.

37. Though Vidyabai at one place endorses the view expressed in Kailash as applicable for the purposes of Order VI Rule 17 of the Code, the ratio in Vidyabai is that trial would have commenced, for the purpose of the proviso to Order VI Rule 17 of the Code, upon any affidavit ofevidence being filed. Again, Vidyabai endorsed the view in Baldev Singh that trial would commence, for the purpose of the proviso to Order VI Rule 17 of the Code, when documents are filed. Documents are not effectively tendered into evidence till such time an objection as to the admissibility thereof is decided or the document is taken in with the objection to be considered at a later date. Thus, in view of Vidyabai relying both on the dicta in Madan Lal Yadav and in Baldev Singh, Vidyabai cannot be understood as having laid down that, for the purpose of the proviso to Order VI Rule 17 of the Code, the trial in a suit commences immediately upon the issues being framed; nor can the ratio in Vidyabai be restricted to what it expressly says: that the trial commences, for such purpose, upon any affidavit of evidence being filed. In the light of Vidyabai accepting the dicta in both Madan Lal Yadav and Baldev Singh, it is implicit that the commencement of trial, for the relevant purpose, is when the court applies its mind to assess the lis after the first affidavit of evidence is filed. To repeat, such application of the judicial mind is when the first witness proves his affidavit of evidence or such witness seeks to prove a document for it to be tendered in evidence or the crossexamination of such witness begins, whichever is earlier.

38. It is also of some significance that the bar under the proviso to Order VI Rule 17 of the Code covers the application for amendment and not individual amendments that are proposed to be incorporated. It is possible that an amendment application is filed seeking severalamendments with at least one proposed amendment that, in spite of due diligence, the party could not have raised the matter before the commencement of the trial. In view of the wording of the proviso to Order VI Rule 17 of the Code, once an amendment application is capable of being entertained but such amendment application contains other proposed amendments that the party, with due diligence, could have applied for before the commencement of the trial, the court is not obliged to reject such other proposed amendments that, with due diligence, could have been brought before the commencement of trial. In such a scenario, when one of the proposed amendments is liable to be allowed, the court may allow such of the other amendments as may be necessary for the purpose of determining the real questions in controversy between the parties by putting the party seeking the amendments on terms, say, by imposing costs. Even if as a consequence of an amendment, the valuation of the suit is altered and the suit can no longer be continued in the court where it was originally filed, there is no rule that such an amendment cannot be allowed if the amendment is found to be necessary.

39. The question raised in the reference is, thus, answered as follows: the expression “commencement of trial” in the proviso to Order VI Rule 17 of the Code of Civil Procedure would imply the date when the court first applies its mind after the affidavit of evidence is filed and when the first witness proves his affidavit of evidence or such witness seeks to prove adocument for it to be tendered in evidence or the cross-examination of such witness begins, whichever is earlier.

40. The matter should now go back to the relevant bench for a decision on merits in accordance with the answer to the legal issue as above.

41. Certified website copies of this judgment, if applied for, be urgently made available to the parties upon compliance with the requisite formalities.