P.C.:-

1. Heard the learned Counsel appearing on behalf of the Petitioner and the learned Counsel appearing on behalf of the Respondents.

2. Petitioner herein is aggrieved by the order passed by the trial court dated 13/01/2011 on an application filed by the Respondents/Plaintiffs for amendment of the plaint. By the said order, the trial court was pleased to allow the said application for amendment and permitted the Plaintiffs to amend the pleadings in terms of 5(b), 6(a), 9(a) and 10(a) of the Schedule.

3. Petitioner herein is the original Defendant and the Respondents are original Plaintiffs. For the sake of convenience parties shall be referred to as “Plaintiffs” and “Defendant”.

4. Plaintiffs had filed a suit seeking possession of the suit premises and for payment of mesne profits under section 41 of the Presidency Small Causes Courts Act. Defendant filed their Written Statement. Issues were framed and court passed an order directing the Plaintiffs to file their affidavit in lieu of evidence. However, before the affidavit in lieu of evidence was filed, Plaintiffs preferred an application for amendment. In the said application, it was contended that the Plaintiffs may be permitted to raise the alternate plea denying the contention of the Defendant that the license in respect of the suit premises was in the nature of irrevocable license and for consequential amendments. This application was opposed by the Defendant by filing their reply. The trial court, however, allowed the application for amendment.

5. The learned Counsel appearing on behalf of the Petitioner/Defendant submitted that by virtue of amendment to order VI Rule 17 by Code of Civil Procedure (Amendment) Act, 2002, S.7 (w.e.f.1-7-2002), a proviso was inserted in the said provision as a result of which an application for amendment could not be entertained by the court after commencement of the trial, unless it was established that despite due diligence, party could not apply for amendment before commencement of the trial. It was submitted that the trial court did not take this fact into consideration and, therefore, on this ground alone the order was liable to be set aside. Secondly, it was submitted that the Plaintiffs were very well aware of this fact about defence of the Defendant and this was clear from the notice of eviction which was given by the Plaintiffs in which it was specifically mentioned that the Defendant were claiming that they were irrevocable licensees. It was submitted that, it was, therefore, open for the Plaintiffs to have taken this alternate plea when they filed the suit since they were aware about the defence which was likely to be taken by the Defendant. It was also submitted that the order directing the Plaintiffs to file their affidavit in lieu of evidence was passed in 2008 and the Plaintiffs had deliberately delayed filing of affidavit in lieu of evidence and, therefore, by virtue of the Court directing the Plaintiffs to file their evidence the trial had commenced. In support of the said submission, the learned Counsel for the Petitioner placing reliance on the judgments of the Supreme Court in (i) Kailash vs. Nankhu and Others (2005) 4 SCC 480, (ii) Agendraprasadji N. Pandey and another vs. Swami Keshavprakeshdasji N. and Others (2006) 12 SCC 1 and in (iii) Vidyabai and Others vs. Padmalatha and another (2009) 2 SCC 409 submitted that, therefore, it was not open for the trial court to consider the application for amendment after commencement of the trial in view of the proviso and on account of due diligence being not observed the application for amendment ought to have been rejected. On the other hand, the learned Counsel appearing on behalf of the Respondents/Plaintiffs relied upon the judgment of the Supreme Court in Revajeetu Builders and Developers vs. Narayanswamy and Sons and Others (2009) 10 SCC 84

6. After having heard both the Counsel at length, in my view, it is not possible to interfere with the order passed b