The main legal point established in the judgment is that the proviso to Section 21(1)(a) of U.P. Act No. 13 of 1972 is mandatory, and an admission cannot be permitted to be withdrawn by amendment. Additionally, the interpretation of 'due diligence' as per Order VI Rule 17 C.P.C. was crucial to the court's decision.

Ram Surat Ram (Maurya),J.

Heard Sri Govind Saran Nigam for the petitioners.

2. This writ petition has been filed against the order of Judge, Small Cause Court dated 10.12.2013, rejecting the amendment application of the petitioners, for amending written statement.

3. Anuj Agrawal (respondent-2) filed an application (registered as RCPA No. 7/2012) under Section 21(1)(a) of U.P. Act No. 13 of 1972 for release of the shop in dispute, which is in possession of the petitioners as a tenant. The case was contested by the petitioners and they filed their written statement on 05.03.2013. After filing of the written statement, the petitioners filed an amendment application under Rule 34 of the Rules framed under U.P. Act No. 13 of 1972 on 12.11.2013 for amending the written statement. The proposed amendments are in effect for adding paragraph 14-A in the written statement, raising the plea that respondent-2 purchased the house in dispute through sale deed dated 07.01.2006 and filed a release application on its basis, without giving six months previous notice, as required under Section 21(1)(a) proviso of the Act as such release application was not maintainable. The aforesaid application has been heard by Judge, Small Cause Court, who by the impugned order dated 10.12.2013, found that as trial had already commenced, as such, in view of proviso to Order 6 Rule 17 CPC, the amendment could not be allowed. On this ground amendment application was rejected. Hence, this writ petition has been filed.

4. The counsel for the petitioners submits that proviso of Section 21(1)(a) of U.P. Act No. 13 of 1972 raises a legal issue relating to maintainability of the release application. The provision has been held to be mandatory by the Supreme Court in Nirbhai Kumar v. Maya Devi, (2009) 5 SCC 399 . The plea sought to be raised by way of amendment, being the legal plea, was necessary for deciding the real controversy between the parties, the amendment ought to have been allowed by Judge, Small Cause Court, exercising its power under second part of Order 6 Rule 17 CPC, but it has been illegally rejected.

5. I have considered the arguments of counsel for the petitioners and examined the record.

6. Supreme Court in Nirbhai Kumar's case (supra) held that although Proviso to Section 21 (1) (a) of U.P. Act No. 13 of 1972, which contemplates of six months' previous notice, is mandatory for initiation of proceeding under Section 21(1) (a) of the Act, but the tenant has right to waive it. The petitioners filed his written statement and has not raised the plea regarding six months' previous notice. Thus the petitioners waived their right as contemplated under the proviso to Section 21(1) (a). Proposed amendment amounts to withdrawal of the waiver of the petitioner which cannot be permitted to be withdrawn by way of amendment. Supreme Court in Modi Spinning & Weaving Mills Co. Ltd. Vs. Ladha Ram & Company, (1976) 4 SCC 320 , Heera lal Vs. Kalyan Mal, (1998) 1 SCC 278 , Gautam Swaroop Vs. Leela Jetly, (2008) 7 SCC 85 , Sumesh Singh Vs. Phoolan Devi, (2009) 12 SCC 689 and Vishwanath Agrawal Vs. Savitri Bera (2009) 15 SCC 693 held that an admission cannot be permitted to be withdrawn by amendment. Same principle will apply in this case also.

7. The counsel for the petitioners submits that the earlier counsel engaged by the petitioners has expired. Thereafter, they engaged a subsequent counsel, who noticed the defect in the written statement. The petitioners, being a semi illiterate persons, had no knowledge about the law, in such circumstances, the proviso to Order VI Rule 17 C.P.C., which requires 'due diligence' should not be invoked.

8. Order VI Rule 17 C.P.C., as amended in the year 2002, is quoted below: -

"17. Amendment of pleadings.--The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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 d