PUSHPENDRA SINGH BHATI, J.

1. Petitioner has preferred this writ petition with the following reliefs :-

"1. That the impugned order dated 05.10.2016 passed by the learned Additional Civil Judge (J.D) Merta, in Civil Original No.235/2015 titled Manju Lata v. Prahlad & Ors. may kindly be set aside. Application (Annexure-5) filed in the matter may kindly be allowed as a whole.

2. Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.

3. Costs of the writ petition may kindly be awarded to the petitioner."

2. Learned counsel for the petitioner has argued that the petition is seeking amendment in the suit as he is entitled for the easementary rights and unless the prayer is expanded the complete relief to the petitioner shall not be available.

3. Learned counsel for the respondent has opposed the submissions with a categorical argument that the petitioner was supposed to exercise due diligence as the facts regarding easement were known to the family since last 200 years and the petitioner cannot be permitted to invoke the Order 6 Rule 17 of CPC at this stage.

4. Learned counsel for the respondent has relied upon the judgment passed by a coordinate Bench of this Court in Meera Ben (Smt.) v. Amritlal & Anr. (S.B. Civil Writ Petition No.1669/2015), decided on 18.02.2015. The relevant portion of this judgment reads as under :-

"From the above averments it is apparent that the petitioner has failed to indicate any reason whatsoever necessitating filing of the amendment application as required by proviso to Order VI, Rule 17 CPC. The provisions of Order VI, Rule 17 CPC read as under:

"17. Amendment of pleadings - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such 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."

Under the proviso, an application seeking amendment after the trial has commenced 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; for attracting the said provision, the minimum requirement in an application under Order VI, Rule 17 CPC seeking amendment in the plaint after commencement of trial is that the applicant has to make out a case that despite due diligence the matter could not be raised before the commencement of the trial; however, in the present case, not a word has been indicated by the plaintiff in this regard.

Hon'ble Supreme Court in the case of Vidyabai & Ors. v. Padmalatha & Anr. : (2009) 2 SCC 409 while dealing with the proviso to Order VI, Rule 17 CPC observed as under:-

"10. ...............It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefore are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.

11. From the order passed by the learned trial Judge, it is evident that the respondents had not been able to fulfill the said precondition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lie of examination-in-chief of the witnesses, in our opinion, would amount to "commen