SANJAY KISHAN KAUL, J.

( 1 ) THE plaintiff has filed a suit for possession against the defendants. Defendant No. 3 is in possession of the land in question, which is stated to have been taken over for road widening. The suit was filed as far back as in the year 1979. The amendment application has been filed by the applicant / defendant no. 3 in the year 2005 after 26 years of filing of the suit. The amendment seeks to incorporate in the written statement what is claimed by the applicant / defendant No. 3 to be a legal preliminary objection to the effect that the suit is not maintainable in view of the provisions of Section 192 of the Punjab municipal Act, 1911 (hereinafter to be referred to as, the Municipal Act ).

( 2 ) THE submission of learned senior counsel for defendant No. 3 / applicant is that this being a legal objecfon can be taken at any stage of time.

( 3 ) LEARNED counsel for the plaintiff, on the other hand, has drawn the attention of this court to the amended provisions of Order VI rule 17 of the Code of Civil Procedure, 1908 (hereinafter to be referred to as, the Code ). The provision reads as under:"order VI pleadings GENERALLY r. 17. Amendment of pleadings. A The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties : 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 the matter before the commencement of trial. " (emphasis supplied)

( 4 ) IT is not in dispute that trial had already commenced prior to the amendment being sought. In view of the proviso, the amendment cannot be allowed unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The question sought to be raised is in view of the provisions of the Municipal Act and, thus, it cannot be said that despite due diligence, the same could not be raised.

( 5 ) LEARNED counsel for the plaintiff points out that it is not merely a legal objection which is sought to be taken, but has certain factual ramifications. In order to appreciate it, the Section itself would have to be referred to and is as under:"192. Building scheme. A- (1) The committee may, and if so required by the Deputy Commissioner shall, within six months of the date of such requisition, draw up a building scheme for built areas,a nd a town planning scheme for unbuilt areas, which may among other things provide for the following matters, namely:- (a) the restriction of the erection or re- erection of buildings or any class of "buildings in the whole or any part of the municipality, and of the use to which they may be put; (b) the prescription of a building line on either side or both sides of any street existing or proposed; and (c) the amount of land in such unbuilt area which shall be transferred to the committee for public purposes including use as public streets by owners of land either on payment of compensation or otherwise, provided that the total amount so transferred shall not exceed thirty five per cent and the amount transferred without payment shall not exceed twenty five per cent, of any one owner s land within such unbuilt area. (2) When a scheme has been drawn up under the provisions of sub-section (2) the committee shall give public notice of such scheme and shall at the same time intimate a date not less than thirty days from the date of such notice by which any person may submit to the committee in writing any objection or suggestion with regard to such scheme which he may wish to make. (3) The committee shall consider every objection or suggestion with regard to the scheme which may be received by the date intimated und

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