1. This Writ Petition is directed against the order dated 2.9.2013 passed on an application at Exh.84 filed under Order 6, Rule 17 CPC in Regular Civil Suit No. 20/2010/A by the Civil Judge, Senior Division, Vasco-da-Gama.

2. The petitioners, who are original defendants filed an application under Order 6, Rule 17 CPC for amendment of their written statement. By the proposed amendment, the petitioners submit certain clarifications were sought to be introduced in the written statement so as to elaborate the stand and the defence taken by the petitioners. It was their contention that these pleadings were necessary for deciding the real controversy involved in the case and could not have been incorporated by them in the written statement earlier inspite of due diligence on their part. They submitted that their earlier counsel was instructed on these facts by them but he was of the opinion that it was not necessary to include them in the written statement as basic facts were already stated therein. It is also submitted by them that they believed in the ability and extra ordinary knowledge of the advocate on record and therefore, did not press for inclusion of these pleadings in the written statement.

3. Amendment application was strongly opposed by the respondents/original plaintiffs. It was their contention that the trial of the suit having been commenced and no ground having been shown by the petitioners in terms of the proviso to Rule 17, Order 6 CPC, the application could not be allowed.

4. After hearing both sides, the learned Civil Judge, Senior Division found that the petitioners failed to establish that amendments were of such a nature as, inspite of due diligence, could not have been made earlier and therefore, rejected the application by his order which is impugned herein.

5. Heard learned counsel for the petitioners and learned counsel for the respondents. The only point that arises for my determination in this Writ Petition is:-

Whether the impugned order dated 2.9.2013 suffers from vice of arbitrariness and unreasonableness?

6. Learned counsel for the petitioners has submitted that the principles that apply to amendment of written statement are slightly different from those which apply to the amendment of plaint as in case of amendment of written statement the question of prejudice is far less important than in the latter case. Therefore, what is required to be seen by the Court is whether or not the plea sought to be raised is necessary for deciding the real controversy involved in the case. He also submits that while applying the principle of “due diligence” Court must be conscious of the fact that it is for the Court to decide whether or not parties could have raised the matter earlier after exercise of due diligence and that the application cannot be dismissed simply on the ground that such pleading is not made in the application. He also submits that pleadings can be amended at any stage of the suit, even at the appellate stage and, if this is so, the application filed in the instant case by the petitioners ought to have been granted by learned Civil Judge, Senior Division.

7. In support of his submissions, the learned counsel for the petitioners has placed reliance upon the following cases:-

(i) Piedade Fernandes Vs. Charlene Leitao, 2012(1) Mh. L. J.

(ii) Rohit A. Kapadia and another Vs. Perviz J. Modi, 2013(4) Mh. L. J. 940.

(iii) Shyamabai Surajkaran Joshi Vs. Madan Mohan Mandir Sanstha, 2014(10 ALL MR 810.

(iv) Kamlesh Jagannath Suryavanshi Vs. Kalyan Shirshir Kumar Dutta, 2013(6) ALL MR 537.

8. On the other hand, learned counsel for the respondents has submitted that since the amendment of pleadings was sought to be made after commencement of the trial in the instant case, the application was required to fulfill the criteria laid down in the proviso to Rule 17, Order 6 of CPC. According to this proviso, learned counsel submits, no application for amendment can be allowed after the trial has commenced