JUDGMENT :

Soumen Sen J.

1. The order refusing amendment of written statement after 26 questions had been put to the witness of the plaintiffs is the subject matter of challenge in this appeal.

2. The short question that arises in this appeal is whether in view of the newly inserted proviso to the amended provision of Order VI Rule 17 of the Code of Civil Procedure, the Court has jurisdiction to allow amendment of pleadings after the commencement of trial; and if at all the court has to exercise any such discretion, whether the appellant was able to make out a case that in spite of due diligence, the appellant was unable to raise the matter forming the subject matter of amendment before "commencement of trial".

3. The fact that the appellants had applied for amendment of written statement after the witness on behalf of the plaintiffs has been partly examined is not in dispute.

4. Before we advert to the submissions made on behalf of the parties with regard to the applicability of the newly added proviso to Order 17, it is necessary for us to consider the explanation offered for delay in applying for amendment and to examine how far the plaintiffs would be prejudiced at the trial if such