Point of Law: Even when the trial has commenced, if the court comes to the conclusion that in spite of due diligence, a party could not have raised the matter before the commencement of the trial, then such an application could be allowed

JUDGMENT :

Ravi Malimath, J

Being aggrieved by the order passed by the trial Court in rejecting the defendant’s application under Order 6 Rule 17 of CPC, the defendant is in appeal. The application seeking amendment of the written statement was filed when the matter was listed for defendant’s witnesses. The application was filed after the issues were framed and the matter was listed for defendant’s witnesses. On considering the plea, the trial Court rejected the application.

2. On considering the reasons assigned, I do not find any ground to interfere with the same. Once the trial has commenced, no amendment can be allowed provided due diligence has been shown. To this extent, I asked the learned counsel as to what is the due diligence. The due diligence, as stated by him, is only in para-9 of the application under Order 6 Rule 17 read with Section 151 of CPC for amendment of written statement, wherein it is stated as follows:-

“9.That applicant/defendant could not brought above mentioned facts in written statement earlier filed as the documents required for preparation of written statement could not be collected inspite of due diligence……....”

3. Except this, there is no other averment made by the petitioner in order to indicate that there exists a due diligence. The proviso is quite clear and has also been enunciated by a series of judgments of the Hon’ble Supreme Court. Even when the trial has commenced, if the court comes to the conclusion that in spite of due diligence, a party could not have raised the matter before the commencement of the trial, then such an application could be allowed. However, due diligence is what, is narrated hereinabove.

4. This, in my considered view, the due diligence, as pleaded by the petitioners, can never ever form due diligence. It is just a stray word that is used by the petitioner in order to say that there is due diligence.

5. Therefore, since the trial has commenced and there is absence of due diligence, such an application cannot be allowed. Consequently, the petition, being devoid of any merit, is dismissed. The pending miscellaneous applications are disposed off.