The provisions of Order 6 Rule 17 were discussed, emphasizing that the provision is not mandatory but directory, and an amendment application can be considered if cause is shown for not making the application early.

1. Rule. Rule is made returnable forthwith. Heard finally with consent of the parties.

2. The plaintiff by this writ petition challenges the order passed by the Civil Judge (Jr.Dn.), Nagpur allowing an amendment application filed by the defendant.

3. A few facts may be narrated as follows -

The petitioner/plaintiff filed suit a for declaration and injunction. The petitioner sought relief that defendant had no right to carry out the demolition work at the site and it should be permanently restrained from doing so. The plaintiff had filed an application for temporary injunction and that was contested. The written statement was not filed within ninety days by the defendant. The defendant's application to accept the written statement on record after lapse of ninety days was rejected. A writ petition was preferred by the defendant and High Court allowed the writ petition and directed the written statement to be accepted on record. In the meanwhile, the evidence of the plaintiff was recorded and defendant's evidence was yet to begin when the defendant filed an application for amendment. This was allowed, hence the writ petition.

4. I have heard Shri A.C.Dharmadhikar, learned counsel for the petitioner and Mrs.Shinde, learned counsel for the respondent.

5. The defendant had contended in the application that the defendant is seeking amendment because some facts, which were important, vital and necessary were not incorporated in the written statement and hence there was a need to amend it. This is the only ground given in the application to seek an amendment. Learned counsel for the petitioner submits that there is no reason in the application why such amendment is necessary. The delay is not explained and the defendant by now denying certain facts, wants to withdraw those admissions.

6. The application is no doubt filed after the evidence of the plaintiff is concluded. The proviso to Rule 17 says that no amendment application should be allowed after the trial has commenced unless it is shown that such plea could not have been raised early in spite of due diligence. Shri Dharmadhikari, learned counsel, submits that the application is filed after trial has commenced and there is no contention that in spite of due diligence such a plea could not have been raised. He submits that on this count alone the application is liable to be rejected.

7. There is no doubt that party seeking to file an application for amendment has to file the said application before the trial commences. The law is now well settled that the provision is not mandatory but is directory. Where cause is shown for not making an application early, such an application can certainly be considered. In the instant case,following dates would be very material. The suit was filed with temporary injunction application on 16/11/2006. Reply was filed by the defendant/respondent on 18/11/2006. Application was rejected and appeal was preferred. The appeal was allowed on 22/3/2007. On 5/6/2007 thereafter the plaintiff filed an affidavit of evidence in the court. On 24/3/2008, an application was filed for permission to file written statement and same was rejected by the court. The defendant had preferred writ petition. The writ petition was allowed. In the meanwhile, the plaintiff was examined and cross-examined by the defendant. As stated earlier, the writ petition was allowed on 26/6/2008 and written statement was taken on record. The amendment application was filed immediately within two months from the date written statement was admitted on record. It must be borne in mind that the evidence had commenced even before the writ petition allowing the written statement to be filed on record was allowed. It is, therefore, apparent that after the written statement was allowed to be placed on record, the amendment application was moved within period of two months. There does not appear to be much delay, therefore, in preferring an amendment application. Shri Dharmadhikari, learned