JUDGMENT :- Heard learned counsel for the respondents.

2. The order dated 4-3-2006 rejecting the application for amendment of written statement under Order 6, Rule 17 of the Code of Civil Procedure (for short "CPC") passed by the learned Judge of the Small Causes Court at Mumbai, is now under challenge before this Court by way of the writ petition under Article 227 of the Constitution of India filed at the instance of the defendants-petitioners, hereinafter referred to as "the defendants".

3. The suit has been filed by the plaintiffs-respondent, hereinafter referred to as "the plaintiffs", on 11th November, 2003 against the defendants inter alia contending that the plaintiffs required a suit premises i.e. plot of land bearing C.S. No. 3/590 and 4/590 with the building standing thereon comprising seven flats or dwelling units, garage, covered spaces for car parks, servant quarters and compound, situate at L. Jagmohandas Marg, Mumbai, reasonably for their growing needs. It is further contended that the tenancy of the defendants has been terminated by notice dated 23-9-2003 and they are entitled to vacant possession of the suit premises from them. In the suit, besides the prayer for possession of the suit premises, the plaintiffs have also prayed for institution of an enquiry into mesne profits under Order 20, Rule 12 of the Civil Procedure Code and for final determination of the mesne profits payable to the plaintiffs. The defendants filed a written statement on 12th January, 2004 and prayed for dismissal of the suit with costs, being false, frivolous and vexatious. On 15-3-2004 issues were framed, and it appears, the evidence of the plaintiffs' witness has already been recorded and while the suit was at the stage of evidence of the defendants being recorded, on 20th October, 2005 they have filed an application seeking amendment of the written statement bearing interim notice No. 414 of 2005 in T.E. and R. Suit No. 257/279 of 2003.

4. The defendants sought to amend the written statement and add paragraph 13A contending therein that they are paying and have paid municipal taxes including Maharashtra Tax on larger premises in respect of the suit premises to the Bombay Municipal Corporation and have paid the same till 31-32005. On the basis thereof, the defendants have further contended in paragraph 13A that the payment of municipal taxes amounts to payment of rent and, therefore, the defendants having paid the municipal taxes in respect of the suit premises even after service of the notice to quit dated 23-9-2003 and filing of the suit without any objection by the plaintiffs amounts to waiver of the said notice to quit and since suit is based on that notice, it is not maintainable and liable to be dismissed. In the application, the defendants have specifically stated that the payment of taxes is being looked after by their administration department and the instructions to their advocate in the matter were given by the legal department and they were not aware about the payment of municipal taxes after termination notice dated 23-9-2003 when the written statement, filed on 12-1-2004, was being prepared.

5. The application seeking amendment was opposed by the plaintiffs inter alia on two grounds. Firstly, the defendants have not offered satisfactory explanation to show that in spite of due diligence they could not have raised the matter before the commencement of trial. On the contrary, according to the plaintiff, the explanation offered in the application clearly show that whatever has been sought to be added, by way of an amendment, was within their knowledge and they could have very well stated so in the written statement. In other words, in view of the proviso added to Rule 17 of Order 6 of the Code of Civil Procedure, (for short "the CPC") once trial commences, such amendment cannot be allowed unless the party seeking an amendment satisfies the Court that in spite of due diligence, the party could not have sought such amendment

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