U.D. Salvi, J.

1. This Writ Petition has been referred to us to answer the following questions of law;

i] Whether the view taken by learned Single Judge of this Court in “ AjitNarsinha Talekar Vs. Smt. Nirmala Wamanrao Kakade and others” 2010 (5) Mah.L.J. 481, “ Bhagwandas Kanhaiyyalal Bubna Vs. Shyamsundar Wasudeo Bubna and others” (2010 (1) Bom.C.R. 218, and “ Vinods/o Khimji Lodaya and another V. The Chief Executive Officer and others (Civil Revision Application No. 123/2009), is legal and proper and the trial in civil suit commences on the date of the framing of the issues or that it commences from the date of filing of affidavit in lieu of examination-in-chief?

ii] Whether proviso appended to Order-VI Rule-17 of the Code of Civil Procedure is attracted after framing of the issues or it will come into play only after stage of filing of affidavit/s in lieu of examination-in-chief of witnesses?

2. Proviso to Order-VI Rule-17 of the Code of Civil Procedure, 1973 reads as under:

“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 diligence, the party could not have raised