ORDER : ROBIN PHUKAN, J. Heard Mr. S. Sarma, learned senior counsel assisted by Mr. A. Gautam, learned counsel for the petitioner and Mr. S.N. Krishnatraya, learned counsel for the respondent. 2. In this petition, under Article 227 of the Constitution of India read with Section 151 of the CPC, the petitioner has put to challenge the correctness or otherwise of the order dated 16.02.2024, passed by the learned Civil Judge (Senior Division) No. 2, Kamrup (M) at Guwahati, in Misc. (J) Case No. 322/2023, arising out of Title Suit No. 518/2013. 3. It is to be noted here that vide order dated 16.02.2024, the learned Civil Judge (Senior Division) No. 2, Kamrup (M) at Guwahati has allowed the amendment petition filed by the respondent herein for amendment of the plaint. 4. Mr. Sarma, learned senior counsel appearing for the petitioner submits that the petitioner is the defendant in the Title Suit No. 518/2013, pending before the court of learned Civil Judge (Senior Division) No. 2, Kamrup (M) at Guwahati and the suit was pending at the stage of cross-examination of witnesses. Mr. Sarma further submits that the suit was instituted by the respondent in the year 2013 and the present petitioner had filed written statement-cum-counter claim in the year 2014. Thereafter, the suit was fixed for hearing on 02.04.2015, and the trial was commenced on 09.03.2015. Thereafter, the respondent had filed one amendment petition, under Order 6 Rule 17 of the CPC for amendment of the plaint. But, despite the objection being filed by the petitioner herein, the learned trial court, vide impugned order dated 16.02.2024, had allowed the amendment petition without considering the proviso to Order 6 Rule 17 of the CPC. Mr. Sarma further submits that the due diligence was not pleaded in the said petition and also not considered by the learned trial court. Mr. Sarma referring to the written statement submitted by the petitioner herein, submits that in paragraph No. 26 of the said written statement, it had clearly been stated that the petitioner herein had obtained NOC from the GMC on 26.11.1997, for construction of six storied RCC multi-storied building, over the plot of land, which was purchased by the petitioner herein and showing some photographs of the aforementioned building, Mr. Sarma also submits that construction of the said building had already been completed. 4.1. Mr. Sarma also submits that construction of the said building had already been completed. 4.1. Mr. Sarma further submits that the respondent herein had also filed one injunction petition before the learned trial court, upon which Misc. (J) Case No. 442/2021, was registered and injunction was granted therein and in the schedule of the Misc. (J) case, the respondent herein had clearly stated that the schedule covers a plot of land measuring 3.08 Are and a two storied (extended another four storied) building measuring 1500 sq. ft. per floor, covered by Dag No. 1981(N) K.P. Patta No. 1030(N) of village – Part II, Sahar Sarania. Mr. Sarma further submits that knowing fully well about the construction of the said building on the date of filing of the injunction petition on 29.09.2021, the respondent herein had filed the amendment petition only on 23.03.2023, after almost six years. And as such, due diligence, as required under the provision of Order 6 Rule 17 of the CPC, has neither been pleaded nor been established and without consideration of the same, the learned trial court also had allowed the amendment petition and on such count, the impugned order, so passed by the learned trial court is arbitrary and illegal and therefore, Mr. Sarma has contended to set it aside. 4.2. Mr. Sarma, in support of his submission, has referred to the following decisions :- (i) Pandit Malhari Mahale vs. Monika Pandit Mahale and Others , reported in (2020) 11 SCC 549 (ii) Ajendraprasadji N. Pandey and Another vs. Swami Keshavprakeshdasji N. And Another reported in (2006) 12 SCC 1 ; and (ii) Basavaraj vs. Indira and Others reported in (2024) 3 SCC 705 5. On the other hand, Mr. Krishnatraya, learned counsel for the respondent submits that there was due diligence on the part of the respondent herein in filing of the amendment petition and the same was duly considered by the learned trial court and therefore, there was no infirmity or illegality in the impugned order. Mr. Krishnatraya further submits that after filing of the suit by the respondent, the petitioner herein had constructed the building and thereafter, he wanted to alienate some of the floor of the said building and for which, an injunction petition was filed and the learned trial court had granted the same. Mr. Krishnatraya further submits that after filing of the suit by the respondent, the petitioner herein had constructed the building and thereafter, he wanted to alienate some of the floor of the said building and for which, an injunction petition was filed and the learned trial court had granted the same. But, subsequently, the nature and feature of the suit property was changed for construction of 4 more storied and therefore, there was a requirement for amendment of the plaint and as such, no illegality was committed by the learned trial court in allowing the amendment petition, so filed by the respondent herein. Therefore, Mr. Krishnatraya has contended to uphold the same. 5.1. Mr. Krishnatraya, in support of his submission, has referred to the following decisions :- (i) Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and Another reported in (2022) 16 SCC 1 and (ii) Smt. Ganga Bai vs. Vijay Kumar and Others reported in (1974) 2 SCC 393 6. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition as well as the documents placed on record and also perused the impugned order dated 16.02.2024, passed by the learned Civil Judge (Senior Division) No. 2, Kamrup (M) at Guwahati, in Misc. (J) Case No. 322/2023, arising out of Title Suit No. 518/2013. 7. It appears that while passing the impugned order, the learned trial court had examined two conditions, which are required to be fulfilled, firstly, whether the amendment is necessary for determining the real question in controversy and secondly, whether the amendment can be allowed without injustice to the other party and thereafter, the learned trial court had arrived at the finding that the aforementioned two conditions are fulfilled by the respondent herein and thereafter, allowed the same. 7.1. But, it appears that the learned trial court has not considered the proviso to Order 6 Rule 17 of the CPC, which provides 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. 8. 8. In the instant case, the trial had already been commenced and as such, there is a requirement to fulfill the conditions that the respondent while filing the petition for amendment, must have to show the due diligence before the learned trial court in filing the petition. But, the respondent failed to plead and also to establish the same and the same also eschewed consideration of the learned trial court. 9. It is to be noted here that in the case of Pandit Malhari Mahale (Supra) , Hon’ble Supreme Court held as under :- “ 8. There being no finding by the Court that the Court is satisfied in spite of due diligence, the party could not introduce amendment before commencement of the trial, the order of the trial Judge is unsustainable. The High Court has not adverted to the above aspect of the matter. In view of aforesaid, we allow the appeal and set aside the order¹ of the High Court as well as of the Civil Judge, the amendment application stands dismissed.” 9.1. While arriving at such a finding, the Hon’ble Supreme court had referred to its earlier decision in the case of Vidyabai vs. Padmalatha , reported in (2009) 2 SCC 409 , wherein it is held as under:- "19. 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 plaint." 10. It is also to be noted here that in the case of Ajendraprasadji (Supra) and Basavaraj (Supra) , Hon’ble Supreme Court laid emphasis upon arriving at a conclusion by the court that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 11. In the case of Sanjeev Builders (Supra) , Hon’ble Supreme Court has held as under :- “ 71. Our final conclusions may be summed up thus: 71.1. 11. In the case of Sanjeev Builders (Supra) , Hon’ble Supreme Court has held as under :- “ 71. Our final conclusions may be summed up thus: 71.1. Order 2 Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order 2 Rule 2 CPC is, thus, misconceived and hence negatived. 71.2. All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order 6 Rule 17 CPC. 71.3. The prayer for amendment is to be allowed: 71.3.1. If the amendment is required for effective and proper adjudication of the controversy between the parties. 71.3.2. To avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment do not seek to withdraw any clear admission made by the party which confers a right on the other side, and (c) the amendment does not raise a time-barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). 71.4. A prayer for amendment is generally required to be allowed unless: 71.4.1. By the amendment, a time-barred claim is sought to be introduced, in which case the fact that the claim would be time-barred becomes a relevant factor for consideration. 71.4.2. The amendment changes the nature of the suit. 71.4.3. The prayer for amendment is mala fide, or 71.4.4. By the amendment, the other side loses a valid defence. 71.5. In dealing with a prayer for amendment of pleadings, the court should avoid a hyper- technical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. 71.6. Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. 71.7. Where the amendment merely sought to introduce an additional or a new approach without introducing a time-barred cause of action, the amendment is liable to be allowed even after expiry of limitation. 71.8. 71.7. Where the amendment merely sought to introduce an additional or a new approach without introducing a time-barred cause of action, the amendment is liable to be allowed even after expiry of limitation. 71.8. Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. 71.9. Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. 71.10. Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. 71.11. Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi 40.)” 12. Thus, there appears to be substance in the submission of Mr. Sarma, learned senior counsel appearing for the petitioner and the decisions referred by him also strengthened his submission. 13. In the instant case, in the schedule of the injunction petition dated 29.09.2021, the respondent has mentioned about the two storied building that was extended by another four storied, over the suit land. But, despite knowing fully well about the aforementioned fact, the amendment petition was filed only on 23.03.2023, and no explanation whatsoever was put forwarded as to why the amendment petition could not be filed earlier, while the fact was in the knowledge of the respondent herein. 14. But, despite knowing fully well about the aforementioned fact, the amendment petition was filed only on 23.03.2023, and no explanation whatsoever was put forwarded as to why the amendment petition could not be filed earlier, while the fact was in the knowledge of the respondent herein. 14. As the respondent herein failed to show due diligence in filing the amendment petition, this court is of the view that the impugned order so passed by the learned trial court, without consideration of the proviso to Order 6 Rule 17 of the CPC, failed to withstand the legal scrutiny and as such, it is liable to be set aside. And accordingly, the same stands set aside. 15. In arriving at such a decision, this court derives authority from the decision of Hon’ble Supreme Court in the case of Pandit Malhari Mahale (Supra) 16. In terms of above, this CRP stands disposed of. The parties have to bear their own costs.