JUDGMENT - KHANDEPARKAR R.M.S., J.:---Heard the learned Advocates for the parties. Rule. By consent, rule made returnable forthwith.

2. The petitioner challenges the order dated 19th April, 2002 rejecting the application for amendment of the written statement filed by the petitioner. By way of amending the written statement the petitioner has sought to take additional ground of defence in the suit. The Court below has rejected the application on the ground that the proposed amendment is totally a new case.

3. At the out set the learned Advocate for the respondent referring to the amended Rule 17 of Order VI has submitted that in the absence of the petitioner disclosing sufficient cause for delay in filing the application for amendment to the written statement, there is no case for interference in the impugned order and the petition should be dismissed in limine.

4. By the Code of Civil Procedure (Amendment) Act, the 2002, the Rule 17 of Order VI has been amended whereby proviso is added to the original rule and the said proviso reads thus:

"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 deligence, the party could not have raised the matter before the commencement of trial."

5. Apparently, in terms of the said proviso to Rule 17 of Order VI in case the application for amendment is filed after commencement of the trial, the applicant has to disclose the facts which will reveal that inspite of due deligence on his part he could not plead the matter, which he is seeking to plead by way of amendment, prior to the commencement of trial. Undisputedly, in the case in hand, the application for amendment was filed by the petitioner at the fag end of the trial. Admittedly, the petitioner has not disclosed any fact in the said application which will reveal the exercise of due diligence on the part of the petitioner in matter of inclusion of the pleadings proposed by way of the amendment, prior to the commencement of the trial.

6. The learned Advocate for the petitioner, however, drawing attention to section 16 of the Code of Civil Procedure (Amendment) Act, 2002 and has submitted that the applicability of the proviso to Rule 17, Order VI to the pending cases has been specifically excluded by section 16(2)(b) of the said Amendment Act, 2002. Section 16 of the Amendment Act speaks of repeal and savings. Sub-section (1) thereof provides that:---

"Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement or this Act shall, except in so far as such amendment or provisions are consistent with the principal Act as amended by this Act, stand repealed."

Sub-section (2) of section 16 read thus:---

"Notwithstanding that the provisions of this Act have come into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897 (10 of 1897),

(a) .........

(b) the provisions of Rules 5, 15, 17 and 18 of Order VI of the first schedule as omitted or, as the case may be, inserted or substituted by section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) and by section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and section 7 of this Act;

(c) ............

7. Apparently, in terms of Clause (b) of section 16(2), the applicability of proviso to Rule 17 of Order VI inserted by the Amendment Act, to the pleadings which were filed prior to 1st July, 2002, the day on which the Amendment Act, 2002 came into force, is excluded. The learned Advocate for the respondent, however, placing reliance on the decision of the Apex Court in the matter of (Anant Gopal Sheorey v. The State of Bombay)1, reported in A.I.R. 1958 S.C. 915, submitted that the ruling of the Apex Court in rela

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